Ng Yuen Shiu v. Attorney General

HCMP001019/1980

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Coram: Roberts, C.J. and Rhind, J. (Full Bench)

Date of Judgment: 4th December, 1980.

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JUDGMENT

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Roberts, C.J.:

Preliminary.

1. The applicant NG Yuen-shiu sought a writ of habeas corpus, by notice of motion dated 6th November, 1980.

2. At the hearing of the application on that date, Rhind, J. ordered that a writ of habeas corpus be directed to the Commissioner of Prisons for the production of the applicant before the High Court on 20th November.

3. During the hearing before a Full Bench of the High Court, which took place on 20th, 24th and 25th November, the applicant obtained leave, with the consent of the Crown, to file an application for judicial review under Order 53, by way of an originating motion.

4. The application sought an order of certiorari to quash -

5. The application also sought an order of prohibition to restrain the Director from executing the Removal Order of 31st October, 1980.

6. Counsel for the applicant conceded that he would not be able to argue the grounds set out in that application, in the face of the decision by the Court of Appeal for Hong Kong in Attorney General v. Cheung Kam-ping⁽¹⁾, unless we were prepared not to follow it.

7. He argued that a Full Bench of the High Court is of co-ordinate jurisdiction with the Court of Appeal and that we were not therefore obliged to follow its rulings. We did not agree. A Full Bench is part of the High Court, the decisions of which are subject to appeal to the Court of Appeal. It is self-evident, in accordance with the doctrine of precedent, that the decisions of an appellate court must be followed by any court whose decisions are subject to that appellate court's review. So we announced that we considered that we were bound to follow Cheung Kam-ping.

8. Counsel for the applicant therefore did not pursue further any argument that the Director or the Tribunal had been wrong in finding that the applicant had no right to reside in Hong Kong. The dismissal of his application for orders of certiorari and prohibition would enable him, if the matter were taken further, to attempt to persuade the Court of Appeal that its earlier decision in that case was per incuriam.

Background Facts.

9. The applicant was born in China on 16th May, 1951 and taken to Macao by his parents at the age of three. He entered Hong Kong illegally in 1967, completed an apprenticeship in the repair of sewing machines and started to work in garment factories in 1968.

10. In 1976, he applied for an Identity Card, as a result of which he was removed to Macao in March of that year in accordance with an Order for Removal signed by the Governor. He re-entered Hong Kong illegally a month later and has remained here since.

11. The applicant asserts that he has been running his own business, with Mr. Kwong Chi-pang listed as the registered proprietor. The business, which is called Kam Shing Garment Factory, has 15 sewing machines and employs several workers.

12. On 23rd October this year, the Hong Kong Legislature enacted the Immigration (Amendment) (No.2) Ordinance 1980. The effect of this was to make it obligatory for all residents of Hong Kong to carry proof of identity and to prohibit the employment of illegal immigrants.

13. This Ordinance also conferred upon the Director of Immigration the power to make removal orders under section 19 of the Ordinance.

14. Linked to the enactment of this Ordinance, the Government announced on 23rd October, that the previous "reached base" policy would be discontinued forthwith. Under this policy, an illegal immigrant entering the territory from China would not be repatriated if he managed to reach any of the urban areas without arrest.

15. This "reached base" policy had never applied to illegal immigrants entering the territory from anywhere other than China.

16. Between 24th and 26th October, a series of television announcements was made, in English and Cantonese, explaining that all illegal immigrants from China who did not possess a Hong Kong Identity Card or had not registered for one would be liable to be repatriated unless they registered for a Hong Kong Identity Card by midnight on 26th October.

17. This announcement made no reference to illegal immigrants arriving from places other than China. This appears to have left some doubt in the minds of those who were born in China but had come to Hong Kong only after a period in some other place en route.

18. In particular, there was a number of illegal immigrants who were born in China, had moved to Macao and entered Hong Kong illegally from there. The applicant was one of these.

19. On the evening of 28th October, a group submitted a petition to the Governor, at Government House, seeking assurances about illegal immigrants who had entered from Macao.

20. According to Mr. Lam Yan-kwong, an Assistant Principal Immigration Officer, whom we permitted to be called to give evidence in amplification of his affidavit, he read to the group, outside Government House that evening, a set of questions and answers, which had been prepared for him by a senior officer in the office of the Secretary for Security, who is the head of the policy branch of the Government Secretariat responsible for immigration. In a general sense, the Secretary for Security can be regarded as the superior of the Director of Immigration.

21. The Questions and Answers were as follows -

22. There was some argument as to whether or not Mr. Lam himself appeared on the Television News that evening. He says that he did not appear on a separate programme, but that a T.V. camera was present when he read out the Questions and Answers and he may have been filmed. Alternatively, T.V. programmes may have consisted only of T.V. reporters relating what Mr. Lam was supposed to have said.

23. We do not think that it matters. What is important is what Mr. Lam said, not what he may have been reported to have said. We accept that what he did say was what is set out above, supplemented by his answers to additional questions put to him by one of the group. In these he replied, when he was asked if anyone would get identity cards, that they would have to have their cases judged on their merits and that they would be investigated before decisions were reached. He also stressed that there had been "no amnesty".

24. The same considerations apply to a newspaper report which was produced by the applicant. This appeared on the morning of 29th October and contains a version of what Mr. Lam was supposed to have said. The report did not conform in some respects with what we find Mr. Lam said.

25. The Government cannot be made in any sense responsible for inaccurate reports of Mr. Lam's words, whatever effect these may have had on the minds of the applicant and other illegal immigrants. We therefore have to consider only the effect of the words which Mr. Lam himself uttered.

Arrest and Detention.

26. The applicant (whom we also permitted to give oral evidence in amplification of his affidavit) asserted that, after reading in a newspaper an appeal by the Government to all illegal immigrants to register, he went to the Immigration Department at Li Po Chun Chambers on the morning of 28th October. He was there given a map and card, telling him to attend at the Victoria Barracks Immigration Clearance Office ("Victoria Barracks") the following morning. It was on that evening that he saw the T.V. programme dealing with Mr. Lam's statement outside Government House.

27. On the morning of 29th October, he went to the Victoria Barracks, taking with him various documents, among them the Removal Order which had been made against him in 1976.

28. He was there interviewed by an Immigration Officer, who asked him a few questions, took his papers and told him to wait in another room. Early in the afternoon, he was taken by van, with others, to the Victoria Immigration Centre ("V.I.C.") which was inside the Victoria Prison. He said that it was only then that he realized he had been arrested.

29. He was, at that stage, according to the evidence of Mr. Cheuk, detained for further investigation under section 26(a) of the Immigration Ordinance.

30. Later the same day, he was interviewed in the V.I.C. by Mr. Kwong Kam-yuen, an Immigration Officer, who asked him various questions. His answers were recorded by Mr. Kwong on Form ID600 headed "Immigration Interview Report VIC" (the "Interview Report"). The applicant asserts that he asked Mr. Kwong why he was arrested and what steps would be taken against him but that he received no reply. He added -

"I was not informed of the purpose of this interview nor did he allow me to say anything other than answering his specific questions."

31. The Interview Report was passed to Mr. K.H. Lau, a Senior Immigration Officer at the V.I.C. Mr. Lau passed it to Mr. Cheuk Koon-chau, acting Chief Immigration Officer.

32. Before the papers reached Mr. Cheuk, enquiries had been made of the applicant's supposed employers to check the accuracy of his version of what work he had been doing, and the department's records had been checked.

33. Mr. Cheuk submitted an application for a Removal Order to the Director on 31st October. This application summarized the material contained in the Interview Report and gained from the enquiries which had been made. He recommended the removal of Mr. Ng Yuen-shiu to China.

34. The application addressed to the Director was said to be accompanied by the case file. This presumably contained the Interview Report. The Director personally considered the application and ordered the applicant's removal to China under section 19(1)(b) of the Immigration Ordinance and his detention pending such removal under section 32(3A).

35. On 31st October, the applicant was issued with a Notice of Removal Order, signed by Mr. Cheuk, informing him that the Director had made a Removal Order against him. The notice further told him that he had a right to appeal to a Tribunal under section 53A of the Immigration Ordinance against the decision to make the Removal Order.

36. The applicant availed himself of this right by entering Notice of Appeal on the same date, with the assistance of a firm of solicitors. In this Notice he set out details of his personal history before and after his first entry into Hong Kong in 1967.

37. On 3rd November he was notified of the Tribunal's decision to dismiss his appeal without a hearing, as it has power to do by section 53C of the Immigration Ordinance if satisfied that the matters on which an appellant seeks to rely are matters which would not entitle him to succeed in the appeal.

38. It is to be noted that the jurisdiction of this Tribunal, which is expressed by section 53D(2) to be final, is limited to deciding only if the appellant has the right to land in Hong Kong under section 8 of the Ordinance and whether he had the permission of the Director to remain, when the Removal Order was made.

39. In view of the fact that a Removal Order was made against the applicant in 1976 and that he had admitted in the Interview Report that he was an illegal immigrant when he returned later that year, the Tribunal could hardly have reached any other conclusion.

Estoppel.

40. The first main argument for the appellant was that the Crown is estopped, by the statement made by Mr. Lam, from arresting the applicant or from making a Removal Order against him.

41. There was a clear assurance by Mr. Lam, made with the full authority, and indeed on the express direction, of the office of the Secretary for Security, that those who attended the Li Po Chun Chambers would not be arrested during those interviews. Mr. Lam made it clear that he was talking about illegal immigrants from Macao, as is also apparent from the terms of the Questions and Answers.

42. We are satisfied that this undertaking was substantially broken by the Crown the following day when the applicant was arrested in Victoria Barracks, at the end of his short interview there.

43. Mr. Cheuk's affidavit shows that illegal immigrants, other than those who had entered directly from China before 24th October, 1980, were sent to the V.I.C. for detention under section 26(a) of the Immigration Ordinance. We find that the arrest took place in the office in Victoria Barracks.

44. The applicant had, of course, presented himself at Li Po Chun Chambers before Mr. Lam's public assurance about arrest. Nevertheless, he asserted that he relied upon that assurance when he presented himself at Victoria Barracks on 29th October and we accept that he did.

45. What is the effect of an undertaking given by a public officer, in the scope both of his ostensible and actual authority, as to the exercise by the Crown of a statutory power? There was a broken promise, but has it any legal effect?

46. The consequences in law of erroneous assurances or advice given by officials upon which members of the public rely to their detriment are not clear. Earlier authorities seem to have established that they were of no effect, unless a misrepresentation could be shown to have caused monetary loss.

47. More recent cases, however, suggest that where a public officer gives an assurance, which disregards formal or procedural statutory requirements and on which individuals have relied to their detriment, the public authority concerned is bound by the assurance, see Re L. (A.C.) (an infant)⁽²⁾.

48. Counsel for the applicant relied in this connection on R. v. Liverpool Corporation ex parte Liverpool Taxi-fleet Operations' Association⁽³⁾, in which a local authority was prevented from implementing a decision to change its licensing policy until it had honoured an undertaking given to those who would be affected that they would be given an opportunity to make representations before the policy was changed.

49. The general principle, according to de Smith on Judicial Review of Administrative Action (4th Ed. p. 104), "remains that a public authority may not vary the scope of its statutory powers and duties as a result of its own errors or the conduct of others. Exceptions that are inspired by a desire to ensure that public bodies act 'fairly' should be made with circumspection."

50. The assurance given by Mr. Lam did not relate to any decision which would be taken by the Director. Had he asserted (as was erroneously reported in the newspaper article which was tendered in evidence) that nobody who reported for interviewing would be repatriated, a more difficult question would have arisen. But he did not. His assurance was limited only to the exercise of the power of immigration officers to arrest illegal immigrants from Macao, when they attended for interview.

51. The applicant is entitled to feel a sense of grievance at the way in which he was misled. But we know of no authority which entitles us to find that the arrest itself was illegal, because the applicant put himself in peril of it by virtue of an undertaking which was broken.

52. Similarly, even if the initial arrest for investigation had been unjustifiable in law, this could not have vitiated the Removal Order which the Director subsequently made (assuming that the procedures in relation thereto were correctly observed). Consequently, the order of detention made by the Director, under section 32(3A) of Cap. 115 could not have been affected and it is this warrant which is the present authority for the detention of the applicant.

Duty of Director to act fairly

53. The principal argument advanced by the applicant was that the Director was obliged to act in accordance with the principles of "natural justice" and that he failed to do so, because -

54. It is convenient first to consider whether there is any obligation in law upon the Director to act in accordance with the principles of natural justice. Many of the earlier authorities on this subject made a distinction between decisions of a judicial or quasi-judicial nature and those which were not. It was said that the rules of natural justice might apply to the former (whether they did so in fact needed to be determined by looking at the function concerned in each separate case) but did not apply to the latter. Ridge v. Baldwin⁽⁴⁾ removed this distinction. Thus any decisions before that case must be approached with Ridge v. Baldwin⁽⁴⁾ in mind.

55. The phrase "duty to act fairly" has been used increasingly in the judicial vocabulary in recent years, where the phrase "a duty to observe the rules of natural justice" might formerly have been employed. The latter term, which imports an obligation to act judicially, was appropriate when, before Ridge v. Baldwin⁽⁴⁾, the rules of natural justice were applicable only to judicial or quasi-judicial functions. Now that the duty to apply those rules is not so confined, it seems preferable to refer to a "duty to act fairly".

56. The latter term should enable the courts to deal more freely and flexibly, with procedural and substantive aspects of the exercise of statutory power by public authorities, than they might have done when they were obliged to confine their interventions within the narrower phrase of "natural justice". The duty to act fairly will include the circumstances where natural justice has been applied, but will not be limited thereby.

57. The duty to observe the rules of natural justice is now to be inferred not from the nature of the process but from the nature of the power. In Durayappah v. Fernando⁽⁵⁾, it was suggested that three matters should be considered when deciding whether the nature of the power requires such an inference; first, the nature of the complainant's interest; second the conditions under which the administrative authority is entitled to encroach on those interests; third, the severity of the sanction. These seem to be useful guides, though their application to individual situations is often difficult.

58. It is in relation to the first of these tests that the applicant faces considerable difficulty, since the authorities support the contention that the courts will not grant the protection of the rules of natural justice to some classes of persons - and in particular to aliens - see R. v. Brixton⁽⁶⁾ Prison Governor, ex parte soblen⁽⁶⁾ and Schmidt v. Sec. of State, Home Affairs (C.A.)⁽⁷⁾. By a majority (albeit, if we may say so, a somewhat unusual majority since the Chief Justice, in the event of equal votes, counts as two), the High Court of Australia came to the same conclusion in Salemi v. Minister for Immigration and Ethnic Affairs (No. 2)⁽⁸⁾.

59. In Schmidt⁽⁷⁾, Lord Denning observed, in relation to students who had been refused an extension of stay in the United Kingdom, that he saw no basis for the suggestion that they should be given a hearing before refusal. Aliens, he said, had no right to be in the U.K. except by licence of the Crown. At page 17, he added, after referring to an unreported case in which the Divisional Court had held that a Commonwealth citizen could be refused entry without reason being given and without an opportunity to be heard -

"If such be the law for a commonwealth immigrant, it is all the more so for a foreign alien. He has no right to enter this country except by leave: and, if he is given leave to come for a limited period, he has no right to stay for a day longer than the permitted time. If his permit is revoked before the time limit expires, he ought, I think, to be given an opportunity of making representations: for the would have a legitimate expectation of being allowed to stay for the permitted time. Except in such a case, a foreign alien has no right - and, I would add, no legitimate expectation - of being allowed to stay. He can be refused without reasons given and without a hearing."

60. It is worth noting that Schmidt⁽⁷⁾ came before the Court of Appeal as an appeal against an order that the plaintiff's claim be struck out as an abuse of the process of the court. That appeal was dismissed because it seemed to the majority of the court that the law with regard to the rights of aliens seeking entry was so clear that an action which sought a declaration that such applications by aliens must be dealt with in accordance with the rules of natural justice was unarguable.

61. We were referred to two other cases dealing with immigration, which, it was argued, led to a different conclusion. In Re H.K. (An Infant)⁽⁹⁾ a Commonwealth citizen had a right of admission to the U.K. if he was, as he claimed to be, under the age of 16. Lord Parker held that the immigrant should have been afforded an opportunity to satisfy the immigration officer that he was under that age.

62. In A.G. v. Ryan⁽¹⁰⁾ the respondent had been ordinarily resident in the Bahamas since 1947. He applied for Bahamian citizenship in 1974, under an Article of the Constitution which entitled him to so apply. He was given an interview, at which he was questioned about his activities since 1947, but was not informed of any reason which might be a ground for refusal. His application was later refused without reason being given. The Privy Council held that the Minister was obliged to observe the principles of natural justice since he was determining a question affecting the legal rights of individuals.

63. Both cases seem to us to be readily distinguishable from the approach adopted in Schmidt⁽⁷⁾ since they deal with persons who had a right, if they satisfied specified statutory conditions, to be accorded permission to stay or registration as a citizen.

64. The case of an alien seeking entry would be analagous to In Re H.K. (An Infant) and Ryan if the alien were seeking to establish that, by virtue of section 8(1) of Cap. 115, he has a right to land in Hong Kong. Where this claim is put forward, the rules of natural justice would certainly apply.

65. To ensure that these rules are followed, the Ordinance has established a Tribunal to determine that question. The Notice of Removal Order which is served on an immigrant when the Director has made such an Order against him draws attention to the right of appeal to that Tribunal.

66. The position is very different where an alien is seeking entry, or has already entered and remained illegally and is asking that his stay be legitimized. Nor, if Lord Denning's phrase about "legitimate expectation" is adopted, does it seem to us that he has such an expectation. If an alien, who seeks permission to land openly and properly and is refused, has no right to a hearing, how can it be said that an alien who enters by stealth and later emerges should be in a better position.

67. It may be that his activities since his arrival have been beneficial to the territory. They may have shown him to be a desirable citizen who can contribute substantially to the community. These are factors to which the Director may or may not give weight; whether he does or not is a matter for him. But the fact that an alien is a desirable person cannot enlarge his legal rights so as to entitle him to insist that the rules of natural justice be applied to him.

68. Lord Denning himself, in Selvarajan v. Race Relations Board⁽¹¹⁾ sets out the following broad principles -

"In all these cases it has been held that the investigating body is under a duty to act fairly; but that which fairness requires depends on the nature of the investigation and the consequences which it may have on persons affected by it. The fundamental rule is that, if a person may be subjected to pains or penalties, or or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it. The investigating body is, however, the master of its own procedure. It need not hold a hearing. It can do everything in writing. It need not allow lawyers. It need not put every detail of the case against a man. Suffice it if the broad grounds are given."

69. This passage, taken by itself, could be said to oblige the the Director to "act fairly" in dealing with Removal Orders, since an alien seeking permission to enter may certainly be adversely affected by the decision. However, though this may be accepted as a proper statement of the general principle, the exception as to aliens remains at common law as the Full Bench decided in Wong Bat Kien⁽¹²⁾.

70. Had it been open to us to do so, we might well have been inclined to prefer the dissenting judgment of Murphy, J. in the Salemi Case⁽⁸⁾. As he put it succinctly at page 48 -

"I do not read s. 18 as enabling a Minister to exercise his discretion (to order deportation) in bad faith, without regard to the interests of the person affected, and in a manner which denies natural justice."

Did the Director act fairly?

71. It is not necessary for us to decide this question, since we have concluded that no duty lies upon him to do so. Nevertheless, in case the matter is taken further, we thought it desirable to indicate what we would have found had we been obliged to reach a decision on the matter.

72. The first complaint was that the Director did not honour the undertaking given by Mr. Lam that each case would be considered on its merits and would be investigated before a decision was reached.

73. We see no substance in this. The applicant was arrested at Victoria Barracks at 11.00 a.m. on 29th October, according to the Interview Report. He arrived at the V.I.C. at 11.35. His interview with Mr. Kwong ended at 2.35, though we were not told how long it took.

74. The Interview Report, the accuracy of which has not been challenged by the applicant save with regard to his employment status, shows that he was asked a series of questions about his background and family history. It recites the previous Removal Order made against him and his illegal return to the territory in 1976.

75. The Interview Report shows that Mr. Kwong directed his attention to the various questions set out in part D of the form. He ticked the boxes which indicated that the applicant came from Macao and was not eligible to stay. He did not tick those boxes which suggested that the applicant might have been eligible to stay by reason of Hong Kong Belonger or Chinese Resident status or that there might be humanitarian reasons in favour of his stay.

76. It is apparent from a note in Mr. Kwong's hand in the Interview Report, and from the application for a Removal Order signed by Mr. Cheuk, that a telephone call was made to the person thought to be the applicant's employer and that the latter indicated that the applicant had been working with him for two years.

77. The application for Removal Order also states that there were "no strong humanitarian grounds or other special aspects of the case which I consider would justify the subject remaining in Hong Kong". It is to be presumed that Mr. Cheuk did consider these matters before he signed the application. The minute on the applicant's file, put before the Director, contains a similar opinion, namely

"that there are no strong humanitarian or other circumstances which would warrant any (of the three persons dealt with in the minute) being allowed to stay."

78. All these factors satisfy us that each individual case was considered on its merits and was investigated by officers of the department before a decision was reached by the Director, before whom the information gleaned by those officers was placed.

79. A subsidiary argument mounted by counsel for the applicant was that the Director had not exercised a true discretion under section 19 of Cap. 115, since he had made up his mind that any illegal immigrant against whom a previous Removal Order had been made would be removed, whatever the merits of his individual case.

80. We have no evidence as to this. All we know, from the affidavit of Mr. Cheuk, is that illegal immigrants, from places other than China, were to be arrested and sent to V.I.C. for investigation. We do not know the grounds on which the Director ordered the removal of the applicant. He does not say whether or not the fact that a previous Removal Order has been made was the reason for making this Removal Order.

81. It was then argued that the applicant had not been treated fairly because he had not been told, when he was interviewed, why he had been arrested; nor was he allowed to say anything other than to answer the specific questions of the interviewing officer.

82. Since there is no evidence from Mr. Kwong as to what took place at the interview, we must accept the version given by the applicant. He may have felt that he had been unfairly treated by being arrested in Victora Barracks and taken to the V.I.C., but can he have been under any illusion as to what this interview was for?

83. The public statement made by Mr. Lam, on which the applicant said he had relied so heavily, made it clear that illegal immigrants from Macao would be interviewed and that no guarantee could be given that they might not subsequently be removed. Further, the nature of the questions which were asked must surely have alerted him to the fact that the object of the interview was to enable a decision as to his removal to be reached, whether or not the Immigration Officer said this to him in so many words.

84. The final argument was that the applicant was not given an opportunity to "put his case" for the exercise of the Director's discretion in his favour, that is to say, to advance his arguments for being allowed to stay on humanitarian grounds. He cannot, of course, assert that, because of his good behaviour in Hong Kong and of the worthwhile contribution which he says he has made to the community, the Director would necessarily have come to a different conclusion. He complains that the Director was deprived of the opportunity of doing so.

85. In particular, he asserts that, by the manner in which his interview with Mr. Kwong was conducted, he was not able to explain that he was not an employee, but a partner in a business which employed several workers.

86. The only evidence of what happened at the applicant's interview with Mr. Kwong is the description given by the applicant in his affidavit, i.e. that he was not allowed to say anything other than in answer to the questions put to him by Mr. Kwong. The latter, in his affidavit, says nothing of what transpired at the interview. We must therefore accept the applicant's version, since the Crown has not sought to contradict it, for the purposes of this proceedings.

87. The interviewing officer knew (as did, we have found, the applicant) that the questions which he was asking were intended to elicit information upon which the removal of the applicant was to be considered. He knew that one of the factors to be taken into account was the possibility of "humanitarian reasons".

88. This phrase is not defined but in the ordinary sense of the term may be taken to include such matters as family ties, the distress which removal might cause to others dependent on the subject, the physical and mental health of the subject and, perhaps, as the applicant asserts, his contribution to Hong Kong.

89. The Senior Immigration Officer, when completing Part E of the Interview Report states that he is satisfied that "there are no strong humanitarian or other special factors which need to be considered". This is a further indication that the Director is expected to take them into account when determining whether or not to issue a Removal Order.

90. Are such grounds to be merely derived from such material as emerges from the questions, or should the subject be given the chance to state them? We think he should. It is likely that an illegal immigrant, being interviewed by an immigration officer and knowing that his future is at stake, will be nervous and perhaps overawed. It would be easy for him to do no more than respond to questions and to fail to put forward any special factors, unless he is asked if there are any. In the great majority of cases there will be none. But we think that he should have been asked whether there were any humanitarian reasons or other special factors which he would like to be taken into account before a decision was reached. If this had been done, he would not have been able to claim that he had no opportunity of making it clear that he was a proprietor of a business and not just a technician.

91. To ask such a question would not throw an unreasonable extra burden on immigration officers, and would remove any doubt as to whether or not they have acted fairly in dealing with illegal immigrants where removal is being considered.

92. Thus, had we been able to find (as we were not) that the law requires the Director, in exercising his powers under section 19 of Cap. 115, to "act fairly", we should have further found that there was such a failure, to the limited extent described above; in all other respects, the procedures followed by immigration officers after the applicant's arrest seem to us to have been impeccable.

93. In view of the conclusion which we have reached, that there was, in one respect, a failure to "act fairly", it may be that the Director will feel disposed to reconsider this case before effect is given to the Removal Order issued against the applicant.

94. In the result, therefore, we must refuse the relief sought and the writ of habeas corpus is quashed.

95. The orders of certiorari and prohibition are also refused.

Representation:

B. Bernacchi, Q.C. & Sammy Lee (Kwan & Kwan) for applicant

Barlow for respondent

(1) Civil Appeal 1980 No. 58

(2) (1971) 3 All E.R. 743.

(3) (1972) 2 Q.B. 299.

(4) (1964) A.C. 40

(5) (1967) 2 A.C. 337, at p. 339 (P.C.).

(6) (1963) 2 Q.B. 243.

(7) (1969) 2 Ch. 149.

(8) (1977) 14 A.L.R. 1.

(9) 1967 2 Q.B. 617

(10) 1980 2 W.L.R. 143

(11) 1976 1 All E.R. 12, at p.19

(12)M.P. No. 440/1973 (Unreported)