Re Lee Ching Ming

HCMP000461/1990

HEADNOTE

Judicial Review - Illegal Immigrants - Duty of the Court to scrutinize with care the decision making process - hidden Extradition - Chinese Extradition Ordinance.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: The Hon. Mr. Justice Sears in Court

Date of Hearing: 5 March 1990

Date of Delivery of Judgment: 7 March 1990

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JUDGMENT

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1. This is an application for judicial review by two illegal immigrants pursuant to leave being given by Mr. Justice Mayo. The two applicants are husband and wife and they came illegally into Hong Kong from China on the 2nd of September 1989.

2. On the 6th of December, that is some three months later, they were arrested by police officers together with other persons when the police were engaged in investigating a syndicate that was involved in the provision of forged travel documents. When they searched premises in Mongkok, the applicants were found in possession of substantial sums of money, some US$77,000 and HK$28,000. The applicants told the police that they had come in illegally by boat, that they had been hiding at various places and at the time of their arrest, they were awaiting the preparation of forged Thai passports to enable them to leave Hong Kong, and presumably by virtue of these forgeries to go to Thailand.

3. They were transferred into the custody of the Immigration Department, and on the 10th of December they were interviewed by Immigration Officers. The two are husband and wife as 1 have said. The wife is now six months or so pregnant. The husband said that he was a medical doctor of radiology and his wife was an interpreter with a tourist agency. They claimed that they had been involved with the Tianamen Sqaure matter in June, and that they were fearful for their safety and fled China to come into Hong Kong. They told the Immigration Officers that they feared they would be persecuted for political reasons if they were returned to China.

4. This, of course, is a very serious claim because if they are genuine political refugees, no doubt consideration would be given to their being kept in Hong Kong, particularly if they would indeed be persecuted as they claim.

5. After the interview, the Immigration Department and also Security Branch officials examined with care the claim that was made. It appeared to those various officials that the applicants had told lies; that in so far as the husband was concerned his alleged medical qualifications and experience were not considered to be properly made out, as also their involvement in the student movement and protests. Further, they could not account properly for the very large sums of money found in their possession. Later on, it was discovered by virtue of communications coming from the police that the applicants are wanted in China to face serious charges of profiteering relating to a petrol and diesel oil supply company, at which it was alleged the husband had been the sub-manager and they had defrauded the company of large sums of money by wrongly selling petrol and diesel oil and presumably pocketing the money themselves.

Statutory provisions

6. As far as the statutory provisions are concerned these are found in the Immigration Ordinance. (Cap. 115) Section 13 permits the Director to authorize a person who has landed in Hong Kong unlawfully to remain in Hong Kong; Section 19(1)(b)(2) empowers the service of` a Removal Order on a person who has entered Hong Kong unlawfully. Powers are also given to a person to be kept in custody pending removal (Section 32(3A)) and to be sent back to a specified country (Section 25). Provisions with regard to the right of appeal are found in Section 53(a).

The Role or the Court

7. The discretion of the Immigration officer is wide and unfettered. Nevertheless, judicial review may go to the exercise of this discretion in accordance with well established principles. At the forefront of any consideration by the court is the principle that the applicants must be treated fairly. This has been restated on a number of occasions recently in England and in the House of Lords has been put very graphically by Lord Bridge in R v. Home Secretary ex. p. Bugdaycay (1981)1 AC 514 when he emphasized the importance of judges subjecting "an administrative decision to the most rigorous examination, to ensure that it is in no way flawed according to the gravity of the issue which the decision determines".

8. Secondly, this court is not an appeal court from the decision of the immigration official. I must not substitute my discretion for that of the Immigration Officer, otherwise, I would be giving to myself a power which the Ordinance specifically gives to the Immigration Officer. My role is to scrutinize, as I have done, the decision making process and discover whether it is flawed or not.

9. Mr. McCoy makes' three main points which he submits would justify judicial review being granted. First, he says the Notice of Removal which is dated the 13th of January is on a standard form which contains three decisions, and it is therefore defective. It authorizes the removal of these applicants; further it states they should be kept in custody and lastly that the specified country to which they should be returned is China. They have come from China and being Chinese citizens that is said to be the country to which they should be returned. Mr. McCoy submits that this notice contains not one decision, but three and is therefore defective.

10. I do not agree with that submission. The only decision which has been reached here is the decision ordering their removal. The other two matters are purely administrative factors consequent on that Removal Order. I do not consider those two matters are "decisions" within the meaning of the CCSU case and therefore reviewable by the court.

11. Even if I were wrong, this notice in no way prejudices the applicants; their statutory right of appeal is set out and the only such right is against the Removal Order and the notice clearly tells them this. I do not consider this notice is in any way defective.

12. Secondly, Mr. McCoy submits that as China has sought the extradition of these two for criminal offences, then this Removal Order is in the nature of a hidden extradition. There is still in force in Hong Kong an Ordinance the Chinese Extradition Ordinance (Cap. 235) which provides for a procedure similar to that in standard extradition cases. Evidence would be presented and the persons facing extradition would be brought before a magistrate to see whether or not a 'prima facie' case had been made out.

13. I am told that this Ordinance was last used in 1935, that is some 55 years ago. It is clear from the evidence of the Immigration Officer that although he knew of the request, he did not rely on this factor. Mr. McCoy submits that it was a relevant consideration and the Immigration Officer erred in not sufficiently taking into account this factor. The offence with which these two face is serious, and the punishment may be more grave than in Hong Kong. Indeed, I have been told that for this type of offence. capital punishment may be imposed. Mr. McCoy submits therefore that the Immigration Officer should have considered the effect which the Removal Order would have upon the two applicants. The Chinese Extradition Ordinance is anomalous and it may be that it should be removed from our statutes, but in my judgment, the correct approach here is whether the Immigration Officer was exercising his discretion for the purposes of extradition, or for the purposes of deciding whether a Removal Order should be made.

14. I am in no doubt that the Immigration Officer took into account. the fact that there. had been a request from China for the extradition of these two. but he was exercising his discretion for reasons unconnected with that request.

15. I see no grounds for attributing any want of 'bona fides' here. This was not, in my judgment, a hidden extradition. Although therefore the point which Mr. McCoy raises about the protection afforded by the Chinese Extradition Ordinance is of great interest, it does not fall for consideration today.

16. As a matter of common sense, a fugitive criminal should not be in a better position than an illegal immigrant and the fact that the effect of the Removal Order is that the illegal immigrant may face a trial in the place where he is removed should have no relevance. The principles of law distilled from R. v. Governor of Brixton Prison ex. p. Soblen (1963)2QB 301 are in my judgement still good law. I, therefore, can see no error by the Immigration Officer in so far as this point is concerned.

17. The third matter which is raised is this. The account which the applicants gave of their involvement in the student protests in Tianamen Square and matters connected with Tianamen Square was not accepted by the Immigration Officers. After the initial interview, there was a further detailed scrutiny of their claim, and as I have already indicated, the Immigration Department and the Security Branch officials did not accept that what was being told to them was the truth. It is, of course, easy for any illegal immigrant, particularly those who may be fleeing from their own crimes, to fabricate stories. Whether or not it is accepted is essentially a matter for the discretion of the Immigration Department.

18. As I have said earlier, the decision making process must be fair and the person claiming a particular status such as a political refugee, must know that his claim is taken into account and investigated. It must not be dealt with in an arbitrary manner.

19. I do not read the case of Flickinger v. Director of Immigration (1988) 1HKLR 81 as inhibiting a judge in judicial review proceedings from examining with care, the fairness of the procedure by which the decision to deport is made. It is clear from a very recent decision in England. Gaima Sec of State for the Home Department (1989) Imm. AR. 205) that if there is some material factor, which in the circumstances of the case then being considered, makes it necessary or desirable that the applicant, whose credibility is in issue, should have an opportunity for further representation. then the court may consider the procedure unfair. Gaima, however, is a decision on its own facts. All that has happened here is that further investigation and inquiries through the Immigration Department and the Security Branch have led the Director of Immigration to conclude that the applicants' claims are not well-founded.

20. I can see nothing new which has come into the Director's possession which has made it necessary, or even desirable, that the applicants should further refute that conclusion. Their claim, in my judgment, has been fairly considered.

21. By reasons of the judge's duty to examine these immigrant cases with care, I have also considered whether any unfairness has been caused by the husband's and wife's cases being, as it has been described, "lumped together". They are husband and wife and their stories are similar. Nevertheless, in law, they are separate.

22. Having examined all the matters, I am satisfied that their cases have indeed been considered separately on a fair basis.

23. In conclusion, I can find nothing in the decision making process which would cause the court to interfere in the orders that these two immigrants should be removed to China. I, therefore, dismiss the applications.

Representation:

Mr. McCoy instructed by Messrs So & Karbhari for the Applicants.

Mr. Whaley S.C.C. for Respondent/Crown.