Chan Cho Tei v. Attorney General

HCMP000463/1980

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Coram: Roberts, C.J. and Zimmern, J.

Date of Judgment: 3rd June, 1980

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JUDGMENT

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[Motion for habeas corpus]

Roberts, C.J.:

Background

1. The court is moved for a writ of habeas corpus on behalf of CHAN Cho-tei, otherwise known as CHAN Chi-keung, who is detained in the Lai Chi Kok Reception Centre.

2. The applicant, a person of Chinese race, was born in China on the 16th October, 1954. He entered Hong Kong with his parents on the 13th July, 1971, in accordance with a valid entry permit. The respondent (the Attorney General) does not dispute that the applicant has remained lawfully in Hong Kong since his entry, though no limit of stay appears to have been attached to the permit which authorized his entry into Hong Kong in 1971.

3. The applicant asserts that he has been ordinarily resident in Hong Kong since November 1971, and that he has therefore acquired the status of a "Chinese resident", within the meaning of that term in the Immigration Ordinance (Cap.115).

4. During the period of his residence in Hong Kong, the applicant has been convicted of four offences, one of which was for robbery, an offence which carries a maximum penalty of imprisonment for not less than two years.

5. The applicant was arrested under the authority of a warrant issued over the signature of Mr. Peter Lai, Principal Assistant Secretary for Security, dated 7th May, 1980, and detained in the Lai Chi Kok Reception Centre. Warrants for his further detention, signed by the same officer, were later issued, authorizing his further detention for various periods, the last of which ends on the 5th June, 1980.

6. We have been asked to say that the detention of the applicant under these warrants is unlawful and that therefore a writ of habeas corpus should issue.

Obligation of the custodian

7. This gives rise to the question of what the custodian must establish in applications of this nature. In Reg. v. Governor of Risley Remand Centre Ex parte Hassan ⁽¹⁾, at page 977, Lord Widgery, C.J., reviewed several earlier authorities and reached the following conclusion -

"I do not propose to read further from the judgments in Ahsan's case because, as I say, the decision (as I understand it) was based very largely upon the fact that there one was dealing with British subjects, and here one is dealing with an alien who prima facie has no right to be in this country at all. Perhaps I should mention, before leaving that case that Ashworth J. said, at p. 237:

I believe that that is the law applicable to the present case."

At p.979, Lord Widgery adds, referring to the judgment of Lord Denning in Reg. v. Governor of Pentonville Prison, Ex part Azam⁽²⁾ -

"That exactly describes in my view the position in which the applicant now finds himself. The gaoler's return is good on the face of it. The gaoler said 'I detain this man by virtue of an order under paragraph 16 of Schedule 2 to the Act of 1971.' Therefore, it seems to me, the onus is upon the applicant to show a prima facie case that his detention is illegal and for reasons I have already given I am satisfied that that onus is not discharged and therefore the proper course here is to say that habeas corpus should not go and I would refuse the application."

8. The warrant for further detention, under which the applicant is now detained, is expressed to be issued under section 29(2) of the Immigration Ordinance "for the purposes referred to in section 29(1)". The initial warrant for arrest was issued under section 29(1), and subsequent renewals were issued under section 29(2). The validity of the present warrant, therefore, depends upon that of the initial warrant issued under section 29(1).

9. On the face of it, the applicant was detained under a valid warrant. The Secretary for Security, or his delegate, has power to issue warrants under section 29(1). The affidavit of Mr. Lai, who signed the warrant, states that the power of the Secretary for Security under section 29 was delegated to him; this was not contested. Thus, on the authority of Hassan, the burden of showing that his detention is illegal shifts to the applicant.

10. On the basis of Hassan it could be said that it is not necessary for the custodian to do more than show -

11. However, we think that the custodian ought to go somewhat further than this, in a matter as important as that of the detention of an individual.

12. We think that there are three matters of which the custodian must be satisfied, before exercising the powers under section 29. In this instance, Mr. Lai's affidavit shows that he did consider all of them.

13. Firstly, he had before him evidence that the applicant was born in China, and thus prima facie not a Hong Kong belonger. This is a matter which must be considered before a warrant under this section is issued since a warrant may not be issued under section 29 against a Hong Kong belonger because a belonger cannot be deported under section 20. If there are reasonable grounds for believing that the person concerned is not a Hong Kong belonger, a warrant may be issued under section 29. But if there are no such grounds, it would not be proper for such a warrant to be issued.

14. However, it is not at that stage necessary for the person signing the warrant to consider whether the subject is or is not a Chinese resident. This can properly be decided while the subject is detained for the purpose of inquiries, because anyone who is not a Hong Kong belonger can be subject to a deportation order under section 20, whether he is a Chinese resident or not, although the sub-section of section 20 which could be used would depend upon whether he was a Chinese resident or not.

15. Secondly, there should be evidence that the subject has been convicted of an offence of the nature mentioned in section 20(1)(a) or section 20(2)(a). According to his affidavit, Mr. Lai satisfied himself that there had been such a conviction.

16. Thirdly, the issuer of a warrant must consider whether the subject should be detained for the purposes of such inquiry. The Ordinance is silent as to the matters which ought to be considered in relation to this sub-paragraph. Clearly, the possibility that, if he is not detained in custody, the subject will disappear would be sufficient.

17. Mr. Lai's affidavit states that the applicant was arrested in May 1979 and charged with the offence of possession of dangerous drugs; when the case was due to be heard in June 1979 he failed to appear in court and a warrant was issued for his arrest. He was not arrested until the 6th March, 1980 in connection with another offence. Thus there is material on which it was proper for the Secretary for Security to come to the conclusion that he should be detained for the purposes of the inquiry. It would not be proper for a court to interfere, even if it disagreed with his conclusion that the person should be detained. It would do so only if it were of opinion that the issuer of the warrant could not have genuinely believed that the subject should be detained.

18. This aspect was dealt in YOO Soon-nam v. Attorney General⁽³⁾, in which a Korean national had been detained by an Immigration Officer under section 26 of the Immigration Ordinance. This section empowers a member of the immigration service to detain a person for up to forty-eight hours if satisfied that an inquiry for the purposes of the Ordinance is necessary and that such person may abscond if he is not detained.

19. At page 714, Pickering, Ag. C.J., applied what he saw as the proper test in the following terms -

"The question is whether or not the appropriate official had grounds for being satisfied that enquiry for the purposes of the Ordinance was necessary and that the plaintiff might abscond if she was not detained - and that is the sole test. It may be that his satisfaction is misplaced but that matters not if it be genuine and if there exist grounds upon which the satisfaction could be based. In the case of Liversidge v. Anderson (1942) A.C. 206 Lord Atkin said:-

'If there are reasonable grounds, the judge has no further duty of deciding whether he would have formed the same belief any more than, if there is reasonable evidence to go to a jury, the judge is concerned with whether he would have come to the same verdict. For instance, the minister may have reasonable grounds on the information before him for believing that a person is of 'hostile origin'. If so, any ruling by the courts either in an action for false imprisonment or by way of habeas corpus is impossible though it should subsequently be proved beyond doubt that the minister's information was wrong and that the person was of purely British origin.'

It seems to me that similar considerations must apply to an immigration officer's state of satisfaction and that if there were grounds which could lead to that state, and if the state of mind was genuine, then any detention resulting therefrom was lawful."

20. Thus, Mr. Lai has considered all that he should have done, before issuing a warrant under section 29(1).

21. The applicant, on the other hand, has failed to discharge the burden which lies upon him to show that his detention is unlawful. His only argument of substance was that it is unlawful to detain him because he is a "Chinese resident" and so can only be deported under section 20(2). He may or may not be a "Chinese resident". We do not have to decide the matter for the purpose of this application. What we are concerned with at this stage is the legality of the warrant under which he is detained at present. That legality does not depend upon whether or not he is a "Chinese resident". It may be that, if a deportation order is, at a later date, made against him and if that deportation order is based upon a finding that he is or is not a Chinese resident, some recourse to this court may be open to him at that stage; but not now.

22. For these reasons, we are satisfied that habeas corpus should not issue and the application is refused.

Representation:

Cheng Huan (Robin J. Oliver) for applicant

Peter Allan (Legal Dept.) for respondent

(1) 1976 1 W.L.R. 971

(2) 1974 A.C. 18

(3) 1976 H.K.L.R. 702