Ngo Fu Cheong v. Attorney General

Case No.HCMP 924/1981

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCMP000924/1981

IN THE HIGH COURT

	Miscellaneous Proceedings
	1981, No. 924

	IN THE MATTER of a Removal Order
	and
	IN THE MATTER of Sections 19(1)(b), 25, 32(3A) and 36(1) of the Immigration Ordinance, Cap. 115
	and
	IN THE MATTER of a refusal to grant bail

BETWEEN
	NGO FU CHEONG	Applicant
	and
	THE ATTORNEY GENERAL	Respondent

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Coram: Liu, J. in Chambers

Date of Judgment: 14th July 1981

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JUDGMENT

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1. The applicant entered Hong Kong illegally in February 1975. A removal order was made against him in May 1981 under section 19(1)(b)(ii) of the Immigration Ordinance. The applicant's appeal against that removal order was dismissed under section 53D. By virtue of section 53D(2), such dismissal is final.

2. This application for bail pending the execution of the removal order was made exclusively under the inherent jurisdiction of the court. The silence in the Immigration Ordinance as to the court's power to grant bail was acknowledged, but it was submitted that at common law there lied a residual power in this court to allow bail in all criminal matters and quasi-criminal matters. No real attempt was made to define quasi-criminal matters.

3. Without prejudice to the contention that he was wrongly jo9ined, the respondent readily conceded in principle the court's inherent jurisdiction to admit an accused person in custody to bail. However, the respondent did not support the attempted extension of the common law power to grant bail to quasi-criminal matters. Whatever meaning that term conveys, for the purposes of these proceedings, it is to be assumed that such inherent jurisdiction to grant bail, which has been described as accent and important, exists in as well criminal as quasi-criminal matters.

4. Section 19(1)(b)(ii) reads as follows:

"A removal order may be made against a person requiring him to leave Hong Kong subject to subsection (2), by the Director if it appears to him that that person has committed or is committing an offence under section 38(1) or section 41, whether or not that person has been convicted of such offence and whether or not the time within which any prosecution may be brought has expired."

5. Section 38(1) is set out below:

"Subject to subsection (2), 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 or immigration assistant, 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."

6. Section 41 is irrelevant, but it may be pertinent to set the section out in full by way of an illustration that these matters referred to in section 19(1)(b)(ii) are criminal in nature:

"41. Any person who contravenes a condition of stay in force in respect of him shall be guilty of an offence and shall be liable on conviction to a fine of $5,000 and to imprisonment for 2 years."

7. The focal point seems to be, not whether the making of a removal order under section 19(1) is allied with criminal or quasi-criminal matters but whether in fact the very making of it is itself an essential adjunct to a criminal or quasi-criminal matter. A distinction must be drawn between a condition precedent, on the happening of which a judicial tribunal may invoke a power and the exercise of a power by such a tribunal in consequence or on account of that event.

8. In these proceedings, the Director of Immigration may consider exercising his power under section 19(1)(b)(ii) upon the happening of any of the events specified therein but the making of the removal order together with its statutory restraints was not a consequence of or a punitive measure for the occurrence. In other words, there is no causal link between any of these specified events and the removal order to convert it into a criminal matter. An exercise of the power under section 19(1)(b)(ii) does not involve an intervention of cause and effect and will not import the nature of the happening event, criminal or quasi-criminal, into the removal order made. The removal order is not made in response to a criminal offence. The nature of a removal order is, in my view, an executive act independent of that of the supervening event. If indeed section 19(1)(b)(ii) is criminal or quasi-criminal, the applicant could be exposed to double jeopardy which is contrary to every known concept in criminal jurisprudence.

9. In my judgment, the court has no jurisdiction to entertain an application for or grant bail under the Immigration Ordinance to a person subjected to a removal order pending its execution. For all these reasons I cannot accede to the application of the applicant which must therefore be dismissed.

10. This decision is reached not entirely without regret. If the applicant had craved in aid his right to a judicial review, the respondent might not have resisted the application with as much conviction. The objection, though technical, was nevertheless substantial. The court was ably assisted by both counsel, who displayed every determination to make real contribution within the the limited time available. The very nature of this application called for an instant decision. The apparent lack of abundant means on the part of the applicant would unfortunately afford no real opportunity for this decision on an important issue to be thoroughly tested in the Court of Appeal. It gives me no pleasure to have to refuse this application without a hearing on the merits.

	(B. Liu)
	Judge of the High Court

Representation:

Mr. Corrigan instructed by K.B. Chau & Co. for the Applicant.

Mr. Graham, counsel for the Respondent.