Re Yip Shui Ling

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISIDICTION)

MISCELLANEOUS PROCEEDINGS NO.25 OF 1975

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Coram: Huggins & McMullin, JJ.

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JUDGMENT

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Huggins, J.:

1.  This is an application for bail pending the hearing of an application for an order of habeas corpus.  On Sunday last an application was made before my Lord the Chief Justice to adjourn an application for a writ of habeas corpus.  That was the form of the document which was placed before the Chief Justice: it was intended to be an application for a writ of habeas corpus and was clearly so treated.  The hearing was ex parte and an order was made adjourning the application to this Court and directing that it was to be brought by originating motion. Pursuant to that order on 19th January a notice was prepared, and it was filed in the court on 20th, giving notice of an application before the Full Court on 29th January.  It is in relation to this matter that the application for bail is made.

2.  Counsel came before me in chambers this morning and it was agreed that the matter should be referred to a Full Court.  It has been questioned, now that we are sitting in the Full Court, whether there is jurisdiction to grant bail at all. Mr. Chan in moving the court relied initially upon O.54 r. 4 of the Rules of Supreme Court which states in para.1:

“Without prejudice to rule 2(1), the Court or judge hearing an application for a writ of habeas corpus ad subjiciendum may in its or his discretion order that the person restrained be released, and such order shall be a sufficient warrant to any superintendent of a prison, constable or other person for the release of the person under restraint”.

3.  In the alternative he argues that, if that is not available as giving jurisdiction, there is an inherent jurisdiction in the court where any person is detained within the jurisdiction to order his release upon bail.  In fact I do not think it is necessary for him to go quite so far and it is sufficient for his purpose to argue that there is jurisdiction where there is an application for habeas corpus to order release on bail pending the hearing.

4.  Mr. Lucas argues that O.54 r.4 was never intended to cover this sort of application and I think he is right.  That particular rule was intended for the case where there is a clear wrongful detention, and it is open to the court to make an order for release immediately.  However, Mr. Lucas also contends that there is no jurisdiction inherent in the court to grant bail.  There I do not agree. Mr. Chan has cited to us the case of In re Amend 1941 2 K.B. 239.  That case is not directly in point.  That was an application for habeas corpus by a man who had been released on bail.  It does not appear in what circumstances he had been so released.  The only question material to our proceedings which was considered there was whether or not the release on bail prevented the grant of a writ of habeas corpus.  In my view there is clearly an inherent power in this court where somebody is applying for an order of habeas corpus to grant bail pending the hearing in a proper case: see Short & Mellor on The Practice of the Crown (2nd Ed.) 322.

5.  I therefore turn to the question whether or not we ought to grant bail in this case.  The applicant is a young woman who arrived in the Colony having swum from China, a journey which took her apparently twelve hours or more and in which she was accompanied initially by three others, two of whom died on the way.  One cannot but have every sympathy with the young woman in these circumstances but we are not concerned with that: we are concerned with the question whether or not we ought to grant bail pending the hearing of her application.  In that connection it is, of course, material to know what are the prospects of her success in the application and as to that one is bound to point out that there is nothing whatever in the affidavits which have been filed to indicate that this detention is indeed unlawful.  I cannot, of course, say that the application may not succeed but if it goes forward on the papers as they now are it cannot possibly succeed.  Her own affidavit says that she is unlawfully detained but she gives no reason for that allegation and the affidavits in reply by the immigration officers indicate that she admitted, when she came to Hong Kong, that she had no permission to land.  It is clear that she requires that permission under the Ordinance.  It is, therefore, difficult to see how she can possibly succeed.  Indeed the burden of the argument leaves me with the very strong impression that the whole purpose of these proceedings is to delay the deportation of this young woman while applications of a non-legal nature are made in other quarters.  If that indeed is the sole purpose of it it is an abuse of the process of the court.

6.  Be that as it may, in my view there is nothing which has been said which would justify us in making an order for bail in the present case.  I would therefore dismiss this application.

McMullin, J.:

7.  I agree.

Huggins, J.:

8.  It only remains to mention that counsel have told us that the Attorney General, upon whom these proceedings are served has agreed that the time for service of the notice of hearing should be abridged and therefore it is open to counsel to give further notice of a hearing before 29th January and, of course, the appointment for 29th will be vacated.  It is up to counsel to agree when this application should be made and notice then should be given to the court.

21st January 1975.