Re Yung Kwan Lee and Others

CACV000109/1998

Civil Appeal No. 109 of 1998

HEADNOTE

Legality of continued detention of prisoners convicted in Thailand and transferred to serve their sentences in Hong Kong - whether the original Governor's warrants authorising their reception and detention survived the lapse on 1 July 1997 of the application of the international Anglo-Thai Agreement for the transfer of prisoners, and UK imperial legislation authorising relevant Hong Kong legislation and arrangements.

Held:

1. The validity of the warrants and detention under them did not depend upon the continued application of the international agreement and relevant UK legislation.

2. Section 10 of the Transfer of Sentenced Persons Ordinance (which deemed the original warrants to be issued under the new legislation) was valid as enacted, and continues in effect having been adopted under the Basic Law on 1 July 1997).

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 109
(Civil)

IN THE MATTER of YUNG KWAN LEE, LAI HIN CHEUNG, HUNG TAK MING, LO CHING YEE, LAW KIN HEI, CHUNG SIU PANG, WONG TAT SING, LAM CHUNG SHEK alias YAU YUK LI, LAM KWOK KWONG, TANG HING SING, YU KWOK KEUNG, YIU CHUN YUEN, POON LOK YEUNG, LOUIS, TANG KAI WAH, YU CHI WAI, LAI CHI YUEN, WONG CHI TIM, and WU WING KWONG and IN THE MATTER of Section 22A of the High Court Ordinance, Cap. 4 and IN THE MATTER of Application for Writ of habeas corpus ad subjiciendum

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Coram: Hon Nazareth, V.-P., Liu and Mayo, JJ.A. in Court

Dates of Hearing: 17 and 18 November 1998

Date of handing down Judgment: 24 December 1998

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J U D G M E N T

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Nazareth, V.-P.:

Introduction

1. This is an appeal against the order of Stock J made on 30 December 1997 dismissing the appellants' applications for writs of habeas corpus. Originally there were 18 applicants but one of these has been released and there remain 17 appellants.

2. The appellants are all permanent residents of HKSAR. They are detained in Hong Kong prisons pursuant to executive warrants issued before 30 June 1997 under the authority of two Orders-in-Council adapting an Act of Parliament making provision for the detention of prisoners transferred to United Kingdom Dependent Territories under international agreements between the United Kingdom and other countries. The applicants were convicted of drug trafficking and sentenced to very substantial terms of imprisonment in Thailand.

3. The international agreement in question, was made between the Government of the United Kingdom and the Kingdom of Thailand in 1990 and ratified in 1991. It is not in dispute that it ceased to apply to Hong Kong on 30 June 1997. In the appellants' view, that resulted in the absence of any legal provision or authority for their continued detention in prison. In consequence, they made the applications for habeas corpus which Stock J dismissed, and that in turn resulted in their appeal to this Court.

4. Before turning to the appellants' grounds of appeal, it is convenient to set out the legal and particularly statutory background to the matter. This was carefully done by the judge in his judgment. In consequence it is not necessary for me to set out more than is directly in point.

The Anglo-Thai Agreement

5. In 1990 the Government of the United Kingdom entered into a bilateral agreement with the Kingdom of Thailand ("the Agreement") for the transfer of prisoners. Instruments of ratification were exchanged on 6 February 1991 and the Agreement came into effect upon that date. As the judge stated in his judgment:

"The flavour of the Agreement may be appreciated by the following of its provisions, namely :

1. The contracting parties were to inform all persons as were within the scope of the Agreement of the substance of it (Article 4(1)) - no doubt so that those nationals who might benefit from it could avail themselves of its provisions.

2. There is a requirement that the act in the transferring state for which the prisoner is to be transferred to the receiving state constitutes an offence in both jurisdictions (Article 3(a)).

3. The offender had to be a national of the receiving state, and the arrangements could only proceed with the consent of the prisoner affected (Articles 3(a) and 3(g)).

4. In the case of fixed sentences, it was necessary that at least one year remained to be served at the time of the request for transfer (Article 3(d)).

5. Every transfer was to be commenced with a written request through diplomatic channels (Article 4(2)).

6. The transferring state was to retain exclusive jurisdiction regarding, inter alia, 'the revision, modification or cancellation of the sentence.' (Article 4(6)); and if the transferring state reduced, commuted, or terminated the sentence, the receiving state shall, upon being notified of the decision give effect to that decision (Article 6(4)).

7. The continued enforcement of the sentence after transfer was to be governed by the laws and procedures of the receiving state (Article 6(1)); and

8. The receiving state was to be bound by the duration of sentence determined by the transferring state (Article 6(2))."

By virtue of Article 9, the Agreement applied, in relation to the United Kingdom, to Great Britain and Northern Ireland and to Hong Kong and to any other territories to which the Agreement is extended by mutual agreement.

6. It was further provided that the Agreement was to remain in force for five years from the date on which it entered into force (in effect until 6 February 1996) and thereafter "until six months from the date upon which either party gives written notice to the other party of its intention to terminate it".

Application of Anglo-Thai Agreement to Hong Kong

7. Domestic effect was given to the Agreement by the application to Hong Kong, through two Orders-in-Council of the salient and suitably adapted provisions of the Repatriation of Prisoners Act 1984 of the United Kingdom ("ROPA"). The first order was made on 16 December 1986 and came into operation on 1 February 1987 ("the 1986 Order"); and the second was made on 21 October 1987 and came into force on 16 November 1987 ("the 1987 Order").

8. ROPA provided that where the United Kingdom was party to an international arrangement providing for the transfer of a prisoner between the United Kingdom and a country outside the British Islands subject to certain conditions, the Secretary of State of the United Kingdom "shall issue a warrant providing for the transfer of the prisoner into or out of the United Kingdom" (s.1(1) of ROPA). ROPA made provision for necessary and ancillary matters.

9. Section 9 of ROPA provides that :

"Her Majesty may by order in council make provision for extending the provisions of this Act, with such exceptions, adaptations and modification, as may be specified in the Order, to any Colony."

It was under this section that the 1986 Order making adaptations, and the 1987 Order adding Hong Kong to the list of territories to which the 1986 Order applied, were made. It was thus provided that:

"The Governor shall issue a warrant providing for the transfer of the prisoner in and out of [Hong Kong]"

and the Governor was enabled to delegate his functions under ROPA to others. The individual warrant applying to the appellants was thus signed by the Secretary for Security. Each appellant's consent as a prisoner was a condition precedent to the issue of a warrant but once given could not be withdrawn, and a purported withdrawal of consent was not to affect the validity of that warrant (s.1(6)).

10. Under s.3 of ROPA as modified by the Orders, the effect of such a warrant was to authorise both the bringing of the prisoner into Hong Kong and his detention in Hong Kong. There would, therefore, have been no need for the Legislative Council in Hong Kong to enact provisions to enable the Agreement to be operated domestically up to the 30 June 1997.

1 July 1997

11. However, the resumption of the exercise of sovereignty over Hong Kong by the People's Republic of China on 1 July 1997 would signal and produce a number of relevant changes:

(1) International arrangements made between the Government of the United Kingdom and other countries which had been extended to Hong Kong would cease to apply to Hong Kong. Fresh arrangements applying to Hong Kong authorised or approved by the Government of the People's Republic of China had to be made, failing which there would be no such international arrangement. Pursuant to the provisions of the 1984 Sino-British Joint Declaration and ancillary agreements, Hong Kong, with the approval of the People's Republic of China, entered upon a number of bilateral agreements on its own with third parties which were to continue in operation beyond 1 July 1997. It is common ground that prior to 1 July 1997, no such fresh agreement was concluded with the Government of the Kingdom of Thailand in respect of the transfer of prisoners. However, we have been told that agreement has now more or less been reached and should shortly be concluded.

(2) A further significant consequence of the 1 July changes was that ROPA and the two Orders-in-Council would cease to have application to Hong Kong.

(3) This, the judge set out in the following terms:

"In recognition of the facts that former international arrangements to which the United Kingdom was party and had applied to Hong Kong would no longer apply to Hong Kong, and that the Orders in Council applying [ROPA] would lapse in effect by 1 July 1997, there was enacted, in May 1997, local legislation in Hong Kong primarily designed to cater for transfers of prisoners to and from Hong Kong after 1 July 1997, in other words after the date upon which the then current international arrangements ceased to apply to Hong Kong and the date upon which [ROPA] ceased to apply to Hong Kong."

(4) The Basic Law of the Hong Kong Special Administrative Region came into effect on 1 July 1997. Ordinances in force prior to 1 July 1997 which contravened the Basic Law could not be maintained beyond that date.

The Transfer of Sentenced Persons Ordinance ("the TSPO")

12. The TSPO was enacted on 29 May 1997 and came into operation on 6 June 1997. The judge observed rightly that

"It was obviously envisaged when enacted that fresh arrangements would be concluded between Hong Kong and third parties, with appropriate authorisation by the central government, much along the lines as those in place before 1st July 1997."

The TSPO follows the general scheme of ROPA. The Governor "pursuant to any arrangements for the transfer of sentenced persons" is empowered to issue inward warrants providing for the transfer of a sentenced person into Hong Kong. Legislators knew at the time of enactment that on and after 1 July 1997 "Governor" would read as "Chief Executive" and that the Hong Kong Reunification Ordinance provided for this.

13. Section 5 of the TSPO provides that an inward warrant shall be sufficient authority for, "inter alia, the detention of the sentenced person in accordance with the terms of the warrant". Section 6 provides that the warrant may be revoked or varied, and further, that where the term of the sentence imposed on a transferred prisoner has been commuted or reduced, the warrant is to be varied or revoked accordingly.

14. Section 8 requires the Secretary for Security to notify in the Gazette the date upon which "any arrangements for the transfer of sentenced persons shall come into operation", but by subsection (3) provided that s.8 "shall expire immediately upon the expiration of 30 June 1997". Of particular significance the context of this appeal is the following transitional provision.

Section 10(1)

"(1) Where

(a) a sentenced person is in custody in Hong Kong by virtue of a warrant issued under the Repatriation of Prisoners (Overseas Territories) Order 1986 (App. III, p.C1); and

(b) the sentence to be served by that person has not expired on or before the date on which

(i) any arrangements for the transfer of sentenced persons come into operation between Hong Kong and the place outside Hong Kong from which that person was brought into Hong Kong pursuant to the warrant; or

(ii) that Order ceases to be part of the law of Hong Kong, whichever first occurs,

then that warrant shall be deemed to be an inward warrant issued under this Ordinance on that date in respect of the unexpired portion of that sentence remaining to be served after that date, and the other provisions of this Ordinance (including section 6) shall be construed accordingly."

The continued application of the Ordinance

15. It has not been disputed that the TSPO although enacted before 1 July 1997 continued in force as law beyond that date, but that the two Orders-in-Council did not.

16. Article 8 of the Basic Law provides:

"The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region."

17. Article 160 provides that laws previously in force shall be adopted "except those which the Standing Committee of the National People's Congress declares to be in contravention of [the Basic] Law". Needless to say, the TSPO was not so declared to be in contravention and was one of the laws previously in force that was adopted by the National People's Congress. Sections 5 and 7 of the Reunification Ordinance provides that such ordinances adopted continue to apply, and are to be construed with adaptations suitable to the new order.

The warrants

18. The form of the warrants issued in respect of each the appellants is materially the same. Each recites the Agreement, the fact that the Secretary for Security and the appropriate authority in Thailand, as well as the prisoner, have consented to the transfer, and the warrant authorises the Commissioner of Correctional Services to take the prisoner into his custody, to bring him from Thailand to Hong Kong, to deliver him here to prison and to "detain the prisoner in accordance with this warrant for a term of [term to be stated] or until release in accordance with the relevant Hong Kong legislation or relevant international arrangement."

The appeal

19. The grounds of appeal as pursued by Mr Philip Dykes SC, who with Mr Hectar Pun, appears for the appellants, are materially the same as those advanced below. It seems to me that they can conveniently be addressed by reference to two aspects. The latter can be loosely described in the following way. First, that warrants made for the receipt and detention of prisoners prior to 1 July 1997 were and had to be so closely tied in with ROPA, the two Orders-in-Council, and the arrangements of the particular international agreement (the Anglo-Thai Agreement) that they could not survive without their continued application, which ceased with the passing of 30 June 1997; conversely that it was not open to Hong Kong to enact legislation that did not conform to ROPA, the two Orders-in-Council, and the related arrangements under the relevant international agreement. Second, that the TSPO, in particular s.10(1) did not and could not have the effect of extending the validity of the warrants or detention of the appellants beyond 30 June 1997.

The submissions

20. These, primarily, as to the first aspect mentioned, can be stated in the following way in which Mr Dykes summarised the case for the applicants.

"1. The TSPO is a colonial law enacted under the Letters Patent and subject to the Colonial Laws Validity Act 1865. TSPO could not be inconsistent ROPA. Powers conferred on Legco under the Hong Kong (Legislative Powers) Order 1989 could be used to amend ROPA but only in a way consistent with an international agreement applying to HK.

2. TSPO should be construed in the light of the relevant international obligations of the UK. Those were contained in the Anglo-Thai agreement. They contemplate transfer and detention pursuant to arrangements that will remain in place during the detention. (This could include a pardon, remission or re-opening of a case in light of new evidence.)

3. The Anglo-Thai agreement did not address the situation on what would happen after 30.6.1997. It did not do so because it was a matter for the future sovereign power whether to assume continuing international obligations in respect of the subject matter of the agreement. Anglo-Thai intentions (assuming that they could be known) are irrelevant. (Obligations incurred are continuing: see Article 6 of the Treaty.)

4. Legco could not assume that the PRC would wish to assume the treaty obligations of the UK vis-a-vis Thailand. It could not legislate for the detention of the Applicants after 1.7.1997. That would not be a law for the peace, order and good government of the Colony within Article VII, LP because no competence to legislate for the HKSAR only the Crown colony.

5. Legco did have to make provision for the continued detention of the Applicants for as long as the UK had international obligations in respect of them. If no new arrangements under s.2 then had to detain under ROPA as no alternative basis for detention

6. On 30.6.1997 if did not 'deem' the OIC warrants TSPO warrants then if PRC assumed treaty obligations on 1.7.1997 then no valid basis for detention on that day. If PRC did not have in place treaty arrangements concerning the Applicants then no basis for detention under TSPO. Not 'transitional' legislation (s.18(3) Cap. 1 means discount section heading). This is s.10(1)(b)(ii) situation.

7. On R's construction of s.10(1) there is no room for PRC to make a new agreement with Thailand without involvement of UK Govt and that new agreement came into effect on 1.7.1997.

8. HKSAR cannot make a unilateral declaration that it will assume all rights and obligations of the UK under the Anglo-Thai agreement. Would violate Article 13"

The respondent's case

21. Mr Daniel Fung SC, who with Mr Anthony Wu, Deputy Law Officer, appeared for the respondent, disputed the appellants' submissions. He contended that the lawful authority for continued detention of the applicants to be found in s.10(1)(b)(ii) of the TSPO does not presuppose the existence of an international agreement at the time the Order-in-Council, the arrangements, ROPA and the Agreement ceased to apply to Hong Kong. He submits on the contrary that s.10(1) expressly envisaged that situation. In general, he submits, that the judge was entirely right in his conclusions upon these and the other related matters, and in the detailed reasons he gave.

22. I turn then to address the questions arising out of those of Mr Dykes' submissions that need to be addressed.

Analysis of judgment and submissions

23. As indicated, the submissions before this Court were in substance to the same effect as those below. The judge disposed of them by rejecting the appellant's main theme that the subsistence of an international treaty was under the scheme in ROPA essential to the survival of legal authority for continued detention of transferred prisoners. He observed that it can never have been envisaged by the high contracting parties, that the lapse of the international agreement would render unlawful continued detention under a warrant which, when issued, was valid, and which by its terms authorised continued detention for the duration of the sentence imposed.

24. He added, in the light of his examination of the Orders-in-Council, ROPA and the Agreement, that there was nothing in them that suggested that in the event of the lapse of the Agreement, the efficacy of a warrant made before the date of the lapse was affected. Any implication to that effect neither reflected the terms of the Agreement nor sits comfortably with the evident intention of the contracting States.

25. Having carefully considered all the provisions of ROPA, the Orders-in-Council and the Agreement upon which Mr Dykes relies, I have to say that I find nothing that, in my view, would justify the conclusion that a validly issued warrant authorising the receipt and detention of a transferred prisoner would nonetheless cease to have effect if the application of the international agreement to Hong Kong ended.

26. Unquestionably, it must be accepted that the application of such an agreement is envisaged, as the judge recognised, in the context of the transfer of a prisoner, and receipt of a prisoner, and probably the issue of an executive warrant authorising the detention in Hong Kong of the transferred prisoner. But all that is a far cry from a conclusion that the executive warrant would lapse upon the application of the international agreement in question to Hong Kong ending. Indeed, given that prisoners are transferred to Hong Kong to serve the balance of their sentences, such a conclusion would be absurd and perverse, and would require compelling reasons.

27. However, the conclusion, which it is not difficult to reach, that the ROPA scheme, adopted so far as appropriate by the TSPO, does not imply that executive warrants do not survive the cessation of the application of an international treaty, does not lead to the conclusion that there is authority to detain transferred prisoners serving the balance of their sentences in Hong Kong. For that, it is necessary to go to the TSPO, given that it is the authorising legislation continued in force in accordance with the Basic Law.

Effect of s.10(1) of TSPO

28. As I understand Mr Dykes' position, he does not dispute the effective adoption by HKSAR of s.10(1) under Article 160 of the Basic Law and s.7 of the Hong Kong Reunification Ordinance. What he does submit, however, is that only the laws and those provisions thereof that were valid immediately prior to 1 July 1997 would have taken effect. That qualification was a necessary adjunct to his several challenges to the validity of provisions of the TSPO, primarily related to the necessary foundation of an international treaty arising out of the ROPA scheme. Having said that, I now turn to the construction of s.10(1). Since Mr Dykes' submissions are concerned not only with the operation of the Ordinance between enactment and 30 June 1997 and after that date, but also its objects and matrix at the time of enactment, it is convenient to begin with the latter.

29. It is a major and essential part of Mr Dykes' submissions that what the TSPO was seeking and was designed to achieve was to bridge the interregnum between the lapse or cessation of the application to Hong Kong of the Agreement from 1 July 1997 to its replacement by a similar treaty between Thailand and HKSAR with the authority of the central Government. As mentioned, such a treaty or agreement has not yet been entered into, although we are told by Mr Fung that this is now imminent. Reverting to the submissions, the object of bridging the interregnum, it is contended, was in breach of the Colonial Laws Validity 1865, as exceeding a colonial legislature's jurisdiction in point of time and also breaching ROPA's requirement for arrangements under an international agreement. Mr Dykes rightly does not rely on the judge's statement in his third item of the 1 July 1997 changes which I have already reproduced. The enactment in May 1997 that the judge referred to, of domestic legislation in Hong Kong primarily designed to cater for transfer of prisoners to and from Hong Kong after 1 July 1997, was plainly a general description of the background and not a conclusion upon its intentions or effect. As he also said in his judgment a few lines later with respect to the enactment of the TSPO:

"It was obviously envisaged when enacted that fresh arrangements would be concluded between Hong Kong and third parties, with appropriate authorisation by the central government, much along the lines as those in place before 1st July 1997."

By then it was generally known particularly by Legislative Council that except for incompatible laws and provisions, it was intended that there would be a "through train" approach by the central Government and that the Basic Law would make provision for the continuation of Hong Kong laws with that reservation. It could not, therefore, have been the purpose of the TSPO to provide that sanction in effect, i.e. to bridge and indeed over-reach the interregnum and assume that the central Government would enter a similar international agreement, since the Council would have known that all such compatible legislation would be carried forward by the Basic Law, and would not have contemplated bridging the interregnum with incompatible legislation. Moreover, if the TSPO were properly capable of being so construed i.e. as applying both pre and post 1 July 1997, which I doubt, then the former construction sanctioning only the pre-1 July 1997 effect, would clearly be preferable since the latter would result in the legislation being denied legal effect - a fortiori given that such a construction plainly accords with the object of the Ordinance.

30. The meaning of s.10 is apparent from a plain reading of the provision. It is accordingly neither proper or necessary to refer to the factual matrix of its enactment. Nonetheless, I have to say that I would be prepared to take judicial notice of the well-known nature of that factual matrix and that it clearly supports the construction indicated i.e. that the TSPO was intended to apply to the pre-1 July 1997 period but at the same time to do so upon a basis that could readily be adopted by the future Legislative Council, National People's Congress and the central Government pursuant to the relevant provisions of the Basic Law, on 1 July 1997 or thereafter.

31. Viewed in that light, Mr Dykes' main submission that its object of bridging the interregnum breached the Colonial Laws Validity Act fails and with it, its supporting ancillary subsidiary submissions. I also do not accept that the TSPO contravened the Letters Patent, ROPA, or the Orders-in-Council. That view is strengthened by the Hong Kong (Legislative Powers) Order 1989 made exceptionally to empower Hong Kong to deal with the effects of the change of sovereignty upon United Kingdom treaties with other Governments applied to Hong Kong. Enactment of the TSPO did not necessitate or involve any assumption that the Government of the People's Republic of China would assume the United Kingdom's obligations vis-à-vis Thailand. Nor do I accept that the TSPO was enacted to authorise of itself, the detention of prisoners beyond 30 June 1997; the latter is not a conclusion that follows from its conscious compatibility with and subsequent adoption under the Basic Law.

32. Turning to the wording of s.10(1), it deals first with the sentences of transferred prisoners, which remained unexpired at the time new arrangements came into operation between Hong Kong and the place of transfer. These would include sentences of prisoners transferred under new post-TSPO enactment arrangements made after the commencement of the TSPO and before 1 July 1997, and would not involve any intrusion into post-1 July 1997 sovereignty resumed by the People's Republic of China. At the same time, the consciously compatible language adopted would enable the measure to be conveniently adopted under the Basic Law with respect to the post-1 July 1997 period.

33. Second, s.10(1) deals with the 1989 Order ceasing to be part of the law of Hong Kong. This is what in fact happened and the warrant issued under 1986 Order was then "deemed to be an inward warrant issued under the TSPO".

34. On its face, s.10 plainly appears in effect to have specifically invested such warrant with all the force of an inward warrant issued under the TSPO. Admittedly, with reference to a submission by Mr Dykes, "deemed" in terms of the ordinary usage of language sits somewhat awkwardly with a prospective situation, but the intention and effect is nonetheless so clear as to be unarguable.

35. Focusing upon the post-30 June 1997 effect of s.10(1), Mr Dykes also submits that upon a proper construction of s.10(1), as adopted, while an order made under the 1986 Order is deemed to be an inward warrant under TSPO, the necessary foundation of an international agreement is lacking. This appears to involve shades of the earlier main theme already addressed on the necessity of continuity of arrangements as a necessary foundation to the continuance of any warrant. I reject the submission. To accept it would be to deny s.10(1)(b)(ii) its ordinary and clear meaning. Moreover the argument was advanced primarily by reference to the continuing need for the Governor to give effect to commutations and remissions in Thailand of the original sentences in question. That, we have learned in this case, has occasioned no problems. Indeed, we were informed without contradiction that all the appellants have received the benefit of such commutations and remissions.

36. I, therefore, find no merit in Mr Dykes' submissions and reject them.

37. In that regard, the judge was plainly right in his conclusions and reasons. He has in his judgment set out the submissions and considered them in the fullest detail. I do not find it necessary to reproduce all of that here.

38. I turn then to Mr Dykes' alternative point.

Enforcement of foreign penal law

39. In the alternative to his first general submission, Mr Dykes submits that s.10(1)(b) of TSPO contravenes Article 8 of the Basic Law in that it makes provision for the enactment of a foreign penal law otherwise through the medium of a treaty; and furthermore that detention under a warrant issued under the Orders-in-Council and deemed to be a warrant under TSPO is arbitrary or unlawful detention within the meaning of Article 28 of the Basic Law.

40. These submissions were also made to the judge below and he dealt with each in some detail. In short the principle of non-enforcement of another country's penal laws is a principle of international law which the courts will apply as a general rule. But that is not to say that they will apply if their effect is contrary to the express provisions of local legislation. They will then apply only so far as they are not inconsistent with the provisions enacted by the local legislation - see Chung Chi Cheung v The King [1939] AC 160 at 167 and 168. As the judge also pointed out there is local legislation which expressly authorises the imprisonment in Hong Kong of those transferred here in accordance with the provisions of the TSPO as well as the detention of those who had previously been transferred here in accordance with ROPA and the Anglo-Thai Agreement. There is nothing that need be added to those observations of the judge.

General

41. It remains to mention that in his submissions, Mr Dykes sought to rely upon a Legco brief presented to legislators in the context of the enactment of TSPO with the aim of demonstrating that the object of this Ordinance was also to provide a legal basis for the continued detention of prisoners in respect of whom no arrangement existed when the People's Republic of China resumed sovereignty. Likewise he sought to rely upon some document released by the Foreign and Commonwealth Office in London April 1986 on the line to be taken with respect to bilateral agreements then existing between the United Kingdom and third parties which had been extended to Hong Kong and would cease to apply on 1 July 1997. It apparently set out the mechanism under which new arrangements could be made to replace such treaties before 1 July 1997 with the approval of the Chinese Government within the scope of Article 153 of the Basic Law. Neither of these documents are of assistance given the view I have taken of s.10(1) of TSPO. Moreover, it was not shown that such material was admissible upon the rule in Pepper v Hart [1993] AC 593; nor, I have to say with regret, was any proper attempt made to do so.

Conclusion

42. At the end of the day, it is well to recall that the sole issue in this appeal is whether the continued detention of the appellants is lawful. This can now be seen to turn primarily upon whether s.10(1) provides the necessary statutory authority i.e. whether its effect has endured uninterrupted by the resumption of the exercise of sovereignty by the central Government. For the reasons I have given, I am satisfied that it has. Likewise, I am satisfied that the TSPO as effective domestic legislation does provide the necessary legal authority for the continued detention of the appellants. The appeals must therefore fail.

43. Prima facie I can see no reason why the respondent should not have his costs of the appeals. I would accordingly dismiss the appeals with an order nisi that costs be to the respondent.

Liu, J.A.:

44. The material facts are fully set out in the judgment of the Vice-President. What gave rise to these proceedings is the Anglo-Thai Agreement entered into between the United Kingdom and Thailand in 1990. Instruments of ratification were exchanged on 6 February 1991 on which date the agreement entered into force. It was a bilateral agreement between the two contracting states for the transfer of sentenced offenders in the mutual enforcement of penal sentences. It was an agreement reached 6 years after the Joint Declaration. The agreement was to run for 5 years and to be thereafter in force until six months after the service of a written notice to terminate by either contracting nation. By Article 9, the Anglo-Thai Agreement conferring rights and obligations with respect to transferred prisoners was to apply to Hong Kong. In the United Kingdom, effect was given to these treaty arrangements for the transfer of sentenced offenders by domestic law, the Repatriation of Prisoners Act 1984 (ROPA). These arrangements put in place in the United Kingdom by ROPA were extended to Hong Kong by two Orders in Council.

45. The effective application to Hong Kong of the treaty arrangements under the Anglo-Thai Agreement would cease on the resumption by the People's Republic of China (PRC) of her exercise of sovereignty on 1 July 1997. It was pre-eminently desirable that international agreements such as the Anglo-Thai Agreement should be carried forward after Hong Kong became the Special Administration Region (the SAR). The pre-resumption legislature in Hong Kong was given additional power by the Hong Kong (Legislative Powers) Order 1989 (the 1989 Order) to legislate in that area with a view to taking advantage of the through-train concept for international agreements which applied to Hong Kong. It is common ground that the pre-resumption legislature could not enact laws inconsistent with the treaty obligations under the Anglo-Thai Agreement and that the 1989 Order did not relieve the pre-resumption legislature from this constraint; nor could the pre-resumption legislature legislate for the period beyond 30 June 1997. Aided by the 1989 Order, the pre-resumption legislature passed the Transfer of Sentenced Persons Ordinance (the Ordinance) which came into operation on 6 June 1997. S. 10(1)(b)(ii) of the Ordinance is the clause in controversy. S. 10(1) is set out below:

"10. Transitional

(1) Where -

(a) a sentenced person is in custody in Hong Kong by virtue of a warrant issued under the Repatriation of Prisoners (Overseas Territories) Order 1986 (App. III, p. C1); and

(b) the sentence to be served by that person has not expired on or before the date on which -

(i) any arrangements for the transfer of sentenced persons come into operation between Hong Kong and the place outside Hong Kong from which that person was brought into Hong Kong pursuant to the warrant; or

(ii) that Order ceases to be part of the law of Hong Kong, whichever first occurs,

then that warrant shall be deemed to be an inward warrant issued under this Ordinance on that date in respect of the unexpired portion of that sentence remaining to be served after that date, and the other provisions of this Ordinance (including section 6) shall be construed accordingly."

46. When the Repatriation of Prisoners (Overseas Territories) Order 1986 (the 1986 Order in Council) ceased to be part of the law of Hong Kong on 1 July 1997, the application to Hong Kong of the treaty arrangements under the Anglo-Thai Agreement also came to an end. It was the intention of the pre-resumption legislature to take steps, under the authorisation by the United Kingdom, to ensure that the existing Anglo-Thai Agreement as extended to Hong Kong was to be replaced before 1 July 1997 by a Hong Kong-Thai bilateral agreement so that the existing treaty arrangements might continue to remain implemented in the SAR. These steps were taken to realise the object of Article 138 of the Joint Declaration, which reads:

"International Agreement to which the PRC is not a party but which are implemented in Hong Kong may remain implemented in the HKSAR."

Hence, the 1989 Order was made to provide additional legislative powers to the pre-resumption legislature in this regard.

47. Despite these efforts, no Hong Kong-Thai bilateral agreement was signed before 1 July 1997. The previous treaty arrangements ceased to be in force, and there exists no parallel SAR-Thai bilateral agreement by the time this appeal is heard. The short point is: was the hitherto lawful detention of the Thai sentenced prisoners carried over to the SAR in a through-train?

48. These appellants are sentenced Thai prisoners who were transferred to Hong Kong with their consent under the 1986 Order in Council. They were after 30 June 1997 and are still being detained by the Correctional Services Department in the SAR. Pursuant to leave granted by Yam, J., they applied by motion to Stock, J for the issue of writs of habeas corpus. Stock, J held their detention to be lawful and refused their respective applications for writs of habeas corpus, hence this appeal.

49. What falls to be decided by this court is whether the continued detention of the appellants after 30 June 1997 is lawful? It has to be accepted that the pre-resumption legislature could not pass law to have validity beyond 30 June 1997. The two questions immediately leap to mind are:

(1) Has s. 10(1)(b)(ii) of the Ordinance been effectually adopted for operation in the SAR after 30 June 1997?

(2) When the 1986 Order in Council ceased to apply to Hong Kong, could the original warrant which was thereby extended to Hong Kong under the previous treaty arrangements, be deemed valid for its future operation in the SAR by s. 10(1)(b)(ii)?

50. As to question (1), Article 160 of the Basic Law enabled the SAR to adopt "the laws previously in force in Hong Kong ....... as laws of the (SAR)". S. 7 of the Hong Kong Reunification Ordinance (Unification Ordinance) empowers the SAR to maintain previous laws in force in Hong Kong as the laws of the Hong Kong SAR. Further, it is expressly provided that after the adoption of, inter alia, Ordinances previously in force in Hong Kong as the laws of the Hong Kong SAR, they "shall continue to apply" with necessary modifications. Under s. 10 of the Unification Ordinance, the criminal justice system, the administration of justice and course of public justice shall not be affected by the resumption of the exercise of sovereignty over Hong Kong by PRC. There is no doubt in my mind that after the stroke at mid-night, s. 10(1)(b)(ii) became, by such adoption, the laws of Hong Kong SAR. The original warrants which brought these appellants to Hong Kong before 1 July 1997 were thereupon deemed to be an inward warrants by s. 10(1)(b)(ii). That is precisely what s. 10(1)(b)(ii) says, that is to say, the original "warrant shall be deemed to be an inward warrant issued under (the Ordinance) ........ in respect of the unexpired portion of that sentence remaining to be served". An inward warrant is defined by s. 2 of the Ordinance as a warrant issued under s. 3(1)(a). S. 3(1)(a) reads as follows:

"(1) Subject to section 4, the Governor may, pursuant to any arrangements for the transfer of sentenced persons, issue a warrant in the form specified in Schedule 1 providing for the transfer of a sentenced person -

(a) into Hong Kong from the place outside Hong Kong to which those arrangements are applicable;"

51. In my view, as at midnight 30 June 1997, for the unexpired portion of the sentence to be served, a deemed inward warrant in terms of s. 10(1)(b)(ii) of the Ordinance, adopted as the law of the SAR, was to have all the attributes of the original warrant which had been executed. Obviously, the arrangements made under the Anglo-Thai Agreement as extended to Hong Kong by the 1986 Order in Council had to be put in place for the issuance of the original warrant, but an inward warrant was linked by the deeming provision to an executed warrant, not with an unexecuted warrant the issuance of which had to be dependent on treaty arrangements. In short, the previous treaty arrangements are no longer necessary for underpinning the deemed inward warrant with respect to the unexpired portion of the sentence to be served. In my judgment, the respective deemed inward warrants provide in each case a valid basis for the continued lawful detention of these appellants.

52. As to (2), Mr Dykes, leading counsel for the appellants, submits that in commonsense what can be deemed valid is a subsisting event which is otherwise unlawful. It would be irrational, so runs counsel's argument, to deem valid and effectual an act in the future because there would be nothing unlawful in subsistence for s. 10(1)(b)(ii) to deem lawful. Mr Dykes is unable to submit any authority in support of this proposition. For one, I am not persuaded that there is substance counsel's argument. I can see nothing inherently objectionable to the invocation of a deeming provision for past or future acts or events. Just as an existing unlawful act may be deemed lawful, a future state of affair for which there will be no anticipated legal basis could be deemed valid as and when it occurs. That is sufficient to dispose of the appeal of these appellants. I agree with the analyses and reasons therefor given by my Lord, the Vice-President on the other arguments canvassed by counsel. I, too, would dismiss the appeal.

Mayo JA:

53. I agree. There is nothing that I can usefully add.

Nazareth, V.-P.:

54. The appeal is accordingly dismissed with an order nisi that the respondent is to have the costs of the appeal.

(G.P. Nazareth)	(B. Liu)	(Simon Mayo)
Vice President	Justice of Appeal	Justice of Appeal

Representation:

Mr Philip Dykes SC and Mr Hectar Pun (M/s C.W. Heung & Partners) for the Appellants

Mr Daniel Fung SC and Mr Anthony Wu, Deputy Law Officer (Department of Justice) for the Respondent

Remarks:
On appeal by the Appellants to the Court of Final Appeal: Appeal dismissed. Please refer to judgment FACV000001/1999.