Ubamaka Edward Wilson v. The Secretary for Security and Another
Read the full judgment text of CACV 138A/2009 on BabelCite. This Court of Appeal judgment was delivered on 31 May 2011 before Stock VP, Fok JA and Andrew Cheung J.
Administrative law – judicial review – leave to appeal to Court of Final Appeal – immigration – deportation – double jeopardy – cruel, inhuman or degrading treatment – Hong Kong Bill of Rights – Article 3 HKBOR – Article 7 ICCPR – Article 14(7) ICCPR – Article 11(6) HKBOR – common law – public law irrationality – Article 39 of the Basic Law – UK Immigration Reservation of 1976 – 'as applied to Hong Kong' – section 11 of the Hong Kong Bill of Rights Ordinance – Court of Final Appeal Ordinance, Cap. 484, s.22(1)(b) – application to set aside deportation order – Nigerian national facing deportation and possible retrial – whether retrial and reimprisonment for same conduct capable of constituting cruel, inhuman or degrading treatment – held not reasonably arguable on facts – whether real risk of CIDT or double jeopardy in another jurisdiction renders deportation unlawful – held not reasonably arguable – whether Article 39 of the Basic Law requires the whole of the ICCPR to be applicable in Hong Kong such that the UK Immigration Reservation is to be narrowly construed or invalid – held question of substantial importance but not reasonably arguable on the meanings contended for and unnecessary to decide on the facts – leave refused – Court of Appeal's earlier judgment restoring the deportation order stands.
Legal issues: Whether retrial and reimprisonment for same conduct can constitute CIDT · Whether risk of CIDT or double jeopardy in another jurisdiction renders deportation unlawful · Interpretation of 'as applied to Hong Kong' in Article 39 of the Basic Law and validity of the UK Immigration Reservation
Outcome: Application for leave to appeal to the Court of Final Appeal refused.
Cited by 9 cases
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CACV138/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 138 OF 2009 (ON APPEAL FROM HCAL NO. 77 OF 2008) ------------------------------ BETWEEN
------------------------------ Before:Hon Stock VP, Fok JA and Andrew Cheung J in Court Date of Hearing :25 May 2011 Date of Judgment :25 May 2011 Date of Handing Down Reasons for Judgment :31 May 2011 ------------------------------------------ REASONS FOR JUDGMENT ------------------------------------------ Hon Stock VP (givng the Reasons of the Court) : 1.On 19 November 2010, we handed down judgment in this appeal and ordered that the appeal be allowed to the extent that we set aside the order of Reyes J which quashed the deportation order made against the applicant. 2.By Notice of Motion dated 17 December 2010, the applicant applied for leave to appeal from our judgment pursuant to section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, on the ground that the questions involved in the appeal are ones which, by reason of their great, general public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision. 3.At the conclusion of the hearing, we refused leave and indicated that we would hand down our reasons in due course. These are our reasons. 4.The Notice of Motion poses a total of 11 questions as the basis for leave but, before us, Mr Pun on behalf of the applicant proposed their substitution by the following questions:
5.The first question is in our judgment, not suitable as a basis for leave since it was not suggested by this Court that there could not be cases where the trial and imprisonment of a person on account of conduct in respect of which he or she has already been tried and imprisoned for a substantial period was capable of constituting cruel, inhuman or degrading treatment. Indeed, in paragraph 89, Fok JA specifically said that the Court:
6.Furthermore, on the facts of this case, we do not think that the applicant’s contention that his deportation would subject him to cruel, inhuman or degrading treatment is reasonably arguable. Finally, an answer to the question, even if “yes”, will be of little practical value since each case would have to be examined on its own particular facts. 7.The second question covers two quite separate issues: the first, the risk of subjection to cruel, inhuman or degrading treatment and the second, the risk of subjection to double jeopardy. The first limb of the question ignores the fact that this case turned upon the question whether, on its own facts, the deportation of the applicant would subject him to the real risk of cruel, inhuman or degrading treatment. We found that on the facts no such risk was established. Accordingly, the general question posed does not arise. 8.As for the second limb of the question posed, we held that (a) notwithstanding the practical risk of double jeopardy, the act of deporting the applicant would not infringe his rights under ICCPR article 14(7) or BOR article 11(6); (b) double jeopardy could not be relied upon at common law to resist a deportation order; and (c) the decision to remove the applicant from Hong Kong to Nigeria was not irrational in the public law sense (issues 2, 4 and 5 in the judgment). We are of the opinion that the applicant’s contrary contentions are not reasonably arguable. In any event, the generality of the question is not apt as a basis for leave. 9.The third question posed is a little difficult, with respect, to follow. In the light of submissions by the respondent, Mr Pun reformulated the first part of the question as follows:
10.In its various components, the third question is intended to raise questions about the phrase “as applied to Hong Kong” in article 39 of the Basic Law and its meaning; whether the immigration reservation made by the UK Government in 1976 when it acceded to the International Covenant on Civil and Political Rights and applied it to Hong Kong was or remains a lawful reservation as a matter of international law or as a matter of domestic law; the scope of application of the immigration reservation as a matter of construction; and what consequentially is the effect of section 11 of the Hong Kong Bill of Rights Ordinance, which reflects the reservation. 11.We have no doubt but that the correct interpretation of the phrase “as applied to Hong Kong” as used in article 39 of the Basic Law is a question of substantial importance but, that said, we do not think it appropriate in the circumstances of this case to grant leave on the basis of this issue. That is because, first, we do not think it reasonably arguable that the phrase carries any of the meanings for which the applicant contended before us; secondly, because, for practical purposes, the question only arises in this case were the applicant to succeed on the issue of cruel, inhuman and degrading treatment or upon the issue of double jeopardy and we are of the opinion that he does not have a reasonably arguable case in either of those regards. Therefore, the practical import of us granting leave on this question would be to place before the Court of Final Appeal a case which turns on an issue which, despite its importance in general, may well be thought not necessary to determine in this case. 12.We accept, of course, that that Court may nonetheless consider it a question which deserves now to be addressed but in our judgment the circumstances suggest to us that it would be more appropriate for that Court to determine whether to take up the issue within the setting of this case. 13.We should record the fact that Mr Chow SC has, quite properly, conceded the importance of the “as applied to Hong Kong” issue. He did not oppose the application for leave, though he did take issue with the formulation of the questions articulated in the Notice of Motion and helpfully suggested certain reformulations. 14.Nonetheless, for these reasons, we refused the application for leave to appeal.
Mr Anderson Chow S.C. and Ms Grace Chow, instructed by Department of Justice, for the Respondents Mr Hectar Pun and Mr Timothy Parker, instructed by Messrs Tso Au Yim & Yeung, assigned by Director of Legal Aid, for the Applicant | |||||||||||||||
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