Chu Yung Chuen v. The Director of Immigration Department Hong Kong.

HCMP000244/1968

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

MISCELLANEOUS PROCEEDING NO. 244 OF 1968.

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Coram: Briggs & Huggins JJ.

Date of Judgment: 2 December 1968

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JUDGMENT

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Huggins J: Another division of the Court, of which I was also a member, gave leave to apply for an order of mandamus but refused leave to apply for an order of certiorari because we were clearly of opinion that the respondent was not required to act judicially in deciding whether to issue a passport. We were inclined to think that mandamus also would not lie but being aware of the short reports of the decision in Satwant Singh Sawhney v. The Government of India which appear in The Times newspaper of 15th April, 1967 and in 8 Journal of the International Commission of Jurists 134 and as the applicant was not professionally represented we thought it right to give leave to apply so that the matter could be more fully considered.

2. Having now had the advantage of hearing Mr. Hogg on behalf of the respondent I am satisfied that the application must be dismissed. It is perhaps to be regretted that passports have been so far debased that their true nature is in danger of being forgotten. Lord Alverstone, C.J. said in R. v. Brailsford⁽¹⁾:

"(A passport) is a document issued in the name of the Sovereign on the responsibility of a Minister of the Crown to a named individual, intended to be presented to the Governments of Foreign nations and to be used for that individual's protection as a British subject in foreign countries, and it depends for its validity upon the fact that the Foreign Office in an official document vouches the respectability of the person named."

That some countries now appear to require their own nationals (whose respectability they have themselves vouched) to produce a passport both upon departure and upon entry does not in my view affect the true nature of the document. It became the practice to endorse upon passports a vise (or visa) to show that they had been found to be in order by the officials of a country to which they were presented and the modern practice of issuing visas which are nothing more nor less than permits (often subject to limitations or conditions) is merely a debasement of the original concept of a passport. In 1968 Mr. Justice Ashworth said in Reg. v. Secretary of State for Home Department, Ex parte Bhurosah⁽²⁾:

"The hall-mark of a passport, if I may use that phrase, is the fact that it is vouched on behalf of Her Majesty and contains within its own covers a request by Her Majesty as Queen or head of the Commonwealth to those to whom the passport may be shown, to render assistance to the bearer. It is, in a sense, a form of currency by which persons may travel from one realm to another."

3. From the obvious fact that no one can insist as a matter of legal right that another shall vouch for his respectability it follows that, as Lord Denning M.R. said (Idem at p. 284), "a passport is issued by virtue of the Royal prerogative" and that a passport can be refused by virtue of the same prerogative. The fact that the Crown has established a practice by which it is normally guided in deciding whether or not to issue passports to those who apply gives rise to no legal right to a passport even where eligibility is established under that practice. I accept that the law is correctly stated in Mervyn Jones on British Nationality Law (1956 Ed.) at p.195:

"Neither British subjects nor British protected persons may claim as of right a passport or diplomatic protection."

4. I do not think that the Indian case is of any assistance to us: so far as I can see from the short reports available to us it turned upon a doctrine said to be enshrined in the Constitution of India.

5. In my view mandamus does not lie to compel the issue of a passport in any circumstances and it is therefore unnecessary for us to say anything about the merits of the applicant's claim to a passport. I would, however, emphasize (although it is not material to our decision) that the Director of Immigration has stated on affidavit both that if it were established (which means established to his satisfaction) that the applicant was born in Hong Kong the Director knew of no reason why a British passport should not be issued to him and that in the alternative the Director was willing to issue a Certificate of Identity to replace that which was cancelled when the applicant lodged his papers for the issue of a passport. For my part I am not persuaded that the denial of a passport could in any circumstances infringe the fundamental right to freedom of movement as defined in Article 13 of the Universal Declaration of Human Rights, but, even if that be wrong, in the present case it has not been suggested that a Certificate of I dentity would not be equally effective to enable the applicant to proceed on his desired journey to Thailand and to return to Hong Kong and there has been no interference with his freedom of movement.

6. Mr. Justice Briggs authorises me to say that he agrees with the reasons I have given and this is the judgment of the Court. The application is dismissed.

2 DEC 1968

Representation:

Applicant in person Mr. Hogg for the Respondent

(1) (1905) 2 K.B.D. 730 at p. 745.

(2) (1968 1 Q.B. 267, 274).