Re Luong Bat Kien

HCMP000440/1973

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

MISCELLANEOUS PROCEEDINGS NO. 440 OF 1973

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Coram: Huggins and Leonard, JJ.

Date of Judgment: 21st December, 1973.

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JUDGMENT

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Huggins, J.:

1. This is an application for a writ of habeas corpus which was adjourned on 12th December, when it was directed that notice be given to the Director of Immigration.

2. The Applicant came to this Colony some time ago illegally from Vietnam. He was in May this year brought before a court of this Colony, convicted and sentenced for having entered illegally. It was then decided that consideration should be given to his removal from the Colony. He was granted bail. He made certain representations to His Excellency the Governor. His Excellency in due course made an order for his removal and an order for his detention pending removal was made by the Colonial Secretary. These orders were not immediately executed because certain further representations were made by the Applicant. However, these further considerations led to no change in the decision of His Excellency and on 12th December it was sought to remove the Applicant from the Colony. Thereupon, application was made to this Court. Although the Court, which was then differently constituted, had grave doubts whether this was an appropriate way in which to attack this particular order we did decide to adjourn the matter and direct service of notice. The Director of Immigration is now represented before this Court.

3. The Applicant's parents, apparently, were formerly Chinese nationals. I say "formerly" without prejudice to their still being Chinese nationals: they seem to have fled from China to Vietnam and it was there that the Applicant was born. Thereupon the birth was registered with the Embassy of Taiwan in Vietnam and the argument which is advanced before us is that thereby the Applicant attained some form of relationship with the Taiwan Government. However, it is conceded by counsel for the Applicant that at the time that His Excellency made the original order under s.19 of the Immigration Ordinance the only "specified country" for the purposes of this Ordinance in relation to the Applicant was Vietnam. When an order for removal is made directions may be given under s.25 to the captain of a ship or aircraft for the removal by that ship or aircraft to a specified country. Section 2 of the Ordinance defines "a specified country" as meaning:

"a country or territory -

It has not been shown that the Applicant is in fact a citisen of Taiwan but it has now been shown that he is a person who embarked in Vietnam from Hong Kong and it has been shown that there is reason for the Immigration Officer to believe that he will be admitted either to Vietnam or to Taiwan. When the original order was made the only place to which the immigration officer had reason to believe that he would be admitted was Vietnam.

4. It is suggested that although the order when it was originally made was a valid order it was invalidated when the time came for execution because the full facts had not been considered by the Governor. In my view that is an untenable argument for two reasons. First, it seems to me that the matter was very fully considered and that if there was any fact at all which was not considered this was solely because of a failure by the Applicant himself to make the necessary representation at the proper time. He was given the opportunity to make representations in the first instance before the order was made and even after the order had been made he was given further opportunity and the order was not executed until new representations had been considered. The representations involved certain allegations against the Government of Vietnam. It has been said generally that "persons of Chinese race" in Vietnam are being discriminated against and are being ill-treated. That is an opinion apparently held by the Applicant but is supported by no evidence. He has at the last minute, in these proceedings, given rather greater detail of what he is fearing and now says that he fears that he will suffer due process of law for having avoided military service in Vietnam and having left that country without permission. He says, of course, that the due process of law in Vietnam is so harsh that he will suffer the ultimate penalty. That, however, in my view is not a matter with which we are concerned in this case: we are concerned only to decide whether all the due process of law in Hong Kong has been observed. The Applicant has been given every opportunity to make representations and such representations as he has made have been considered. Eventually the Director of Immigration was faced with the position that there were two specified countries within the meaning of the Ordinance, and on the face of it it was lawful for His Excellency and those advising him to remove this Applicant to either of them. We are asked to say that the decision on that matter was of a quasi-judicial nature and, as I understand it, that the failure to hear all the representations has meant that there has been no proper exercise of that quasi-judicial function. As I said, if there has been any failure to consider "all the representations" it is that the Applicant himself failed to make the representations which he has now made to us; but, in any event, for my part I completely fail to see how this can in any way be a quasi-judicial decision. The Director of Immigration is an executive officer of the Government and the decision upon which he had to advise His Excellency was, as I see it, entirely administrative, and it is not proper for this Court to intervene.

5. I come now to the second reason why the order for removal was not invalidated. We have been referred to passages in the authorities which show that there may be cases where this Court can intervene even though a decision has been made which is an administrative decision, but they are cases where a statutory power is being abused by its being employed to achieve a purpose for which it was not granted. In the present case it has been conceded that no question of any ulterior motive has exercised the mind of those who have made the decision. As I suggested in argument, had it been that the removal to Vietnam was made in order to enable the Vietnam Government to deal with this Applicant for a criminal offence which was not an extraditable offence by virtue of some agreement between the Vietnam Government and the Hong Kong Government then this Court would have said that there was an ulterior motive and would certainly have been disposed to consider intervening, However, in the present case there is no ulterior motive, the decision was properly made and in my view the application to this Court is misconceived.

6. I would dismiss the application.

21st December, 1973.

Representation:

Patrick Woo (Patrick Chan & Co.) for applicant

Sceats for respondent