Ubamaka Edward Wilson v. Secretary for Security and Another
Read the full judgment text of FACV 15/2011 on BabelCite. This Court of Final Appeal judgment was delivered on 21 December 2012 before Chief Justice Ma, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Tang PJ and Lord Walker of Gestingthorpe NPJ.
Constitutional law – Hong Kong Bill of Rights Ordinance (Cap 383) s.11 – immigration reservation – whether s.11 precludes reliance on absolute and non-derogable right under BOR Article 3 – purposive construction – sections 5 and 11 to be read together – Nigerian national – deportation order under Immigration Ordinance (Cap 115) s.20(1)(a) – risk of re-prosecution under Nigerian National Drug Law Enforcement Agency Act s.22 for same drug-trafficking conduct – whether BOR Article 3 applies extraterritorially in expulsion cases – whether appellant established CIDTP on the facts – double jeopardy under BOR Article 11(6) in foreign cases – customary international law norm against refoulement to CIDTP – whether constitutional challenge to s.11 justiciable – appeal dismissed – no order as to costs (order nisi)
Legal issues: Constitutional validity of HKBORO section 11 · Scope and effect of HKBORO section 11 in relation to BOR Article 3 · Application of BOR Article 3 in deportation/foreign cases · Reliance on BOR Article 11(6) against double jeopardy in foreign cases · Whether the appellant established CIDTP on the facts · Customary international law norm against refoulement to CIDTP · Remitter to the Director on Nigerian prison conditions
Outcome: Appeal unanimously dismissed. The appellant may not rely on BOR Article 3 or BOR Article 11(6) to challenge the deportation order. On the facts, the appellant failed to establish that deportation would constitute cruel, inhuman or degrading treatment or punishment.
Cited by 301 cases · Cites 18 cases
|
FACV No. 15 of 2011 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION FINAL APPEAL NO. 15 OF 2011 (CIVIL) (ON APPEAL FROM CACV NO. 138 OF 2009) _____________________ Between :
________________________ J U D G M E N T ________________________ Chief Justice Ma: 1.Among other important issues, this appeal addresses the effect of s.11[1] of the Hong Kong Bill of Rights Ordinance Cap 383 (“HKBORO”) when seen against non-derogable and absolute rights contained in Article 3 of the Bill of Rights[2] (we are concerned only with the aspect of cruel, inhuman or degrading treatment or punishment). I am in agreement with the judgment of Ribeiro PJ and with the conclusion (on the facts) that the present appeal should be dismissed. 2.I wish only to emphasize one point in his judgment. The width of s.11 of HKBORO (preserving the effect of any immigration legislation governing entry into, stay in and departure from Hong Kong when generally seen against the Bill of Rights) must be qualified, as a matter of statutory interpretation, by what is contained in the other parts of that Ordinance. Reference is made in the judgment of Ribeiro PJ to s.5. The conclusion (in para 115 below) that s.11 “must be understood to exclude the application of HKBORO and BOR in relation to the exercise of powers and the enforcement of duties under immigration legislation regarding persons not having the right to enter and remain in Hong Kong except insofar as the non-derogable and absolute rights protected by BOR Art 3 are engaged”, is therefore a principled one, dependent on a true and purposive construction of the relevant statutory provisions. It is also consistent with an approach that recognizes the importance placed in Hong Kong on non-derogable and absolute rights. The approach of the respondents that a person (not having the right to be in Hong Kong) was liable to be deported to a place even where it could manifestly be demonstrated that he would be subject to cruel, inhuman or degrading treatment or punishment in that place, was a deeply unattractive submission. Mr Justice Chan PJ: 3.I agree with the judgment of Mr Justice Ribeiro PJ and would like to add just a few words on the construction of s.11 of the BORO. 4.Section 2(2) of the BORO provides that the BOR is subject to Part III which includes s.11. Section 11 disapplies the BORO in the case of persons who have no right to enter and remain in Hong Kong, but this is restricted to the exercise of the Director’s powers and discretions under immigration legislation governing entry into, stay in and departure from Hong Kong. 5.One of the central issues in this case is the scope of this reservation. Notwithstanding the language of s.11, I do not accept that it can have the effect (as submitted by the Director) of denying persons having no right to enter and remain in Hong Kong all the rights under the BOR. Section 11 must be construed in its context, adopting a generous and purposive approach. (See Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4.) 6.The context relevant to the construction of s.11 includes the purpose and object of the BORO. This Ordinance was enacted for the purpose of implementing a treaty obligation by incorporating into the domestic law of Hong Kong the provisions of the ICCPR as applied to Hong Kong and is aimed at providing for the protection of these fundamental human rights, which are now entrenched by BL art 39. The relevant context also includes the other provisions in the BORO, in particular s.5, and the nature and substance of the rights which are to be affected. 7.Some of the rights protected by the BOR are, by reason of their nature and the consequence of their violation, absolute while other rights are, either expressly or by implication, susceptible to lawful restrictions which must satisfy the necessity and proportionality requirements. In the present case, we are only dealing with art 3 (the right to freedom from torture or cruel, inhuman or degrading treatment or punishment) which is absolute. In Soering v United Kingdom (1989) 11 EHRR 439, para.88, the European Court of Human Rights (having regard to art 15 of the European Convention on non-derogation) referred to art 3 of the European Convention (the equivalent of BOR art 3) as an “absolute” prohibition on torture, etc. Similarly, in R (Ullah) v Special Adjudicator [2004] 2 AC 323, para.40, Lord Steyn described this right as “absolute”. In the BORO, s.5 (which reflects ICCPR art 4 and the European Convention art 15) provides that art 3 (among other rights) is not derogable even in times of public emergency threatening the life of the nation. This highlights the importance of art 3 as an absolute and non-derogable right. In my view, this is a very material consideration in the construction of s.11. 8.Thus, when s.11 is construed in its context, I do not believe that it could have been the intention of the legislature that persons having no right to enter and remain in Hong Kong, while undoubtedly subject to immigration controls, would, by s.11, be deprived of the absolute right under art 3 which is also stated as non-derogable under s.5. Such a construction would be contrary to the purpose and object of incorporating ICCPR into our domestic law and incompatible with s.5. 9.I should add that it does not necessarily follow from the conclusion that s.11 does not preclude reliance on art 3 by persons having no right to enter and remain in Hong Kong that persons within this category can rely on the other rights which are also stated as non-derogable under s.5(2). There can be reasons for their inclusion in s.5(2) (e.g. art 7 may be considered as irrelevant to the legitimate control of the state of national emergency and art 15 as impossible for derogation, see General Comment No. 24). Whether these persons can rely on these other rights notwithstanding s.11 has to be decided according to the circumstances of each case. Mr Justice Ribeiro PJ : 10.This appeal raises important issues concerning the constitutional validity, scope and effect of the reservation concerning immigration legislation contained in section 11 of the Hong Kong Bill of Rights Ordinance[3] (“HKBORO”). In particular, it raises issues regarding the effect of that reservation in relation to those articles of the Bill of Rights (“BOR”) which provide protection against double jeopardy and against cruel, inhuman or degrading treatment or punishment. The appellant seeks to challenge the validity of a deportation order made against him, invoking those rights. A. The course of events 11.On 11 December 1991, the appellant, a Nigerian national, travelled to Hong Kong from Nepal and was arrested at the airport for drug trafficking. He was then aged 27. He was convicted and sentenced to 24 years’ imprisonment. 12.While serving his sentence, he unsuccessfully made several applications to the Hong Kong and British Governments to be allowed to serve his sentence in Nigeria. However, in 1998 he desisted when he learned of a new law in Nigeria, namely, section 22 of the National Drug Law Enforcement Agency Act (“the Nigerian law”),[4] which provides as follows:
Persons convicted are made liable to imprisonment for a term of five years without option of a fine and their assets made liable to forfeiture. 13.On 5 July 1999, the Secretary for Security (“the Secretary”) issued a deportation order against the appellant under section 20(1)(a) of the Immigration Ordinance.[5] Although no destination is specified, it is clear that deportation under the order would be to Nigeria. 14.As the date of his release neared, the appellant applied on 7 September 2006 to the United Nations High Commissioner for Refugees in Hong Kong claiming refugee status, citing fear of being subjected to double jeopardy by prosecution under the Nigerian law. His application was rejected in December 2007. In March 2007, he also lodged a claim under the Convention Against Torture which is being separately pursued. 15.On 27 December 2007, the appellant was released from prison for good behaviour after having served two-thirds of his sentence. He was, however, immediately placed in administrative detention under section 32 of the Immigration Ordinance pending his removal from Hong Kong. 16.On 25 July 2008, the appellant brought judicial review proceedings to challenge the validity of both the deportation order and his administrative detention on constitutional grounds. 17.He was released on recognizance on 23 July 2008, a few days after the Court of Appeal had held in a different case[6] that detention under section 32 violated BOR Art 5(1)[7] because the grounds and procedure for detention were not sufficiently certain and accessible. B. The grounds of the challenge 18.The appellant challenges the deportation order on the basis that, if deported to Nigeria, he will face a serious risk of prosecution and punishment under the Nigerian law for the same conduct – drug trafficking – which had led to his conviction and incarceration for 16 years in Hong Kong. Execution of the deportation order, he submits, would violate his constitutionally protected rights against being subjected to double jeopardy and against being subjected to cruel, inhuman or degrading treatment or punishment (“CIDTP”). 19.The provisions in the BOR relied on by the appellant have the status of constitutionally guaranteed rights by virtue of Article 39 of the Basic Law which materially provides:
20.It will be necessary to consider more closely the provisions of Article 39, but for the present, it suffices to note that the appellant’s first ground of challenge (“ the double jeopardy ground”) is founded on Article 11(6) of the BOR which reflects Article 14(7)[8] of the International Covenant on Civil and Political Rights (“ICCPR”)[9] and provides:
21.The second ground of challenge – based on the prohibition of cruel, inhuman or degrading treatment or punishment (“the CIDTP ground”) – is founded on Article 3 of the BOR which reflects Article 7[10] of the ICCPR and relevantly states:
22.A third ground which is sought to be raised involves the contention that a rule prohibiting refoulement (a compulsory return) to face CIDTP constitutes a norm of customary international law (“CIL”) which has been incorporated into the common law of Hong Kong and provides an independent basis for nullifying the deportation order. I shall call this “the CIL ground”. 23.The appellant’s challenge to the lawfulness of his detention need not be dealt with on this appeal. Reyes J[11] held that such detention was unlawful because he was bound by the Court of Appeal’s decision in A (Torture Claimant) v Director of Immigration.[12] Both in the Court of Appeal[13] and before this Court, the respondents have not sought to upset that conclusion. The Court was informed, however, that the correctness of the abovementioned decision is subject to challenge in a pending case.[14] Judgment was in fact handed down by the Court of Appeal on the first day of the hearing of this appeal. This Court was not addressed on it and I say nothing about that decision in this judgment. It is unnecessary to discuss criticisms made in the Court of Appeal of certain alternative grounds relied on by Reyes J. C. The decisions in the Courts below C.1 The double jeopardy ground 24.Both Reyes J[15] and the Court of Appeal[16] accepted that if deported to Nigeria, the appellant would face what was termed “practical double jeopardy”. 25.Fok J[17] (with whom the other members of the Court of Appeal agreed), citing Yeung Chun Pong v Secretary for Justice in the Court of Appeal,[18] distinguished between two aspects of the rule against double jeopardy. First, there is the common law autrefois convict (or autrefois acquit) plea in bar which is a defence against a subsequent prosecution and which only arises in the narrowly defined situation where the elements of the second offence are the same as or included in the original offence. Secondly, there is the wider common law rule against double jeopardy whereby the Court has power to stay proceedings as an abuse of process if the subsequent charge involves an attempt to re-prosecute a person previously convicted or acquitted on the same or substantially the same facts. That distinction has been accepted in this Court.[19] 26.While the Court of Appeal held that the appellant’s situation did not give rise to a plea of autrefois convict, it was accepted that his circumstances brought him within the wider double jeopardy concept since any potential liability under the Nigerian law would arise out of substantially the same facts relating to his drug-trafficking as had led to his conviction and punishment in Hong Kong. 27.Notwithstanding that conclusion, Reyes J[20] and the Court of Appeal[21] both decided that the appellant could not in law invoke the protection of BOR Art 11(6) against execution of the deportation order because such protection has been precluded by section 11 of HKBORO which provides:
28.The appellant was a person “not having the right to enter and remain in Hong Kong” so that the deportation order, having been made under section 20(1)(a) of the Immigration Ordinance, was held to be unaffected by the provisions of HKBORO, including BOR Art 11(6). 29.Reyes J[22] and the Court of Appeal[23] were again ad idem in holding that a second reason for concluding that the appellant could not rely on BOR Art 11(6) was that its provisions only provide protection against double jeopardy within a single state or jurisdiction and do not operate transnationally. 30.Contrary to Reyes J’s view, the Court of Appeal held that a third reason exists for concluding that BOR Art 11(6) does not avail the appellant. It decided that BOR Art 11(6) prohibits:
31.Reyes J, had rejected this narrower view on the basis that protections under the Covenant should receive a generous construction.[25] C.2 The CIDTP ground 32.As we have seen, BOR Art 3 lays it down that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment…” 33.Reyes J and the Court of Appeal[26] were both of the view that there is no basis in the present case for suggesting that the appellant faces any risk of torture. As Reyes J stated (having considered the definition of “torture” contained in the Convention Against Torture[27]):
34.Mr Richard Gordon QC, appearing[29] for the appellant, does not seek to suggest otherwise. The case has therefore been argued on the footing that, given the risk of prosecution under the Nigerian law, deporting the appellant to Nigeria would amount to CIDTP prohibited under BOR Art 3. 35.Reyes J recorded a concession made on behalf of the respondents that Section 11 does not displace reliance on BOR Art 3 as follows:
36.His Lordship therefore went on to consider the facts and concluded that execution of the deportation order exposing the appellant to a risk of being re-prosecuted and punished under the Nigerian law would constitute CIDTP. I return later[31] to a consideration of those facts. 37.The Court of Appeal reversed Reyes J on two grounds, one legal and the other factual. It held first, that as a matter of law, the concession had been wrongly made and that Section 11 precludes reliance on BOR Art 3. While it was clear that prohibition of torture was itself jus cogens, the Court of Appeal held that it had not been established that the same is true of the prohibition against CIDTP, much less true in relation to refoulement to CIDTP.[32] The Court of Appeal went on to hold that even if the prohibitions stipulated by BOR Art 3 are jus cogens as a matter of CIL, section 11 still prevails, excluding reliance on that Article by persons who have no right to enter and remain in Hong Kong in circumstances covered by the section. It held that this was so because the Court, operating at the domestic level, is bound to apply Article 39 of the Basic Law and section 11 regardless of what the position might be on the international plane.[33] 38.Secondly, the Court of Appeal disagreed with Reyes J on the facts and held that the appellant’s circumstances did not disclose anything approaching the level of ill-treatment necessary to constitute CIDTP. It accordingly held that BOR Art 3 did not avail the appellant in his challenge to the deportation order. C.3 The CIL ground 39.The CIL ground involving the asserted existence of a CIL norm prohibiting refoulement to face CIDTP[34] was not raised below. It is sought to be argued for the first time in this Court. C.4 The remitter issue 40.Mr Gordon also raises for the first time in this Court a question relating to what he describes as “a remedy”. He proposes that if the Court should not be satisfied that the facts relied on here and in the courts below constitute CIDTP, that the case should be remitted to the Director for him to consider whether CIDTP is made out on the basis of a different set of facts relating to conditions in Nigerian prisons which are said to be appalling. I shall refer to this as “the remitter issue”. D. The approach in this judgment 41.I propose in this judgment to deal:
E. A municipal law question 42.Before proceeding to deal with each of those issues, a preliminary matter, rightly emphasised by the respondents, ought to be addressed. While certain provisions of the ICCPR will have to be examined as part of the context, the questions with which we are concerned are to be resolved under the domestic law of Hong Kong and not by any purported direct application the provisions of that treaty or by any purported adjudication of an issue on the plane of international law. 43.It has long been established under Hong Kong law (which follows English law in this respect), that international treaties are not self-executing and that, unless and until made part of our domestic law by legislation, they do not confer or impose any rights or obligations on individual citizens.[35] It is a principle of construction that where a domestic statute is ambiguous and is capable of bearing different meanings which may in turn conform or conflict with the treaty, the court will presume that the legislature intended to legislate in accordance with applicable international treaty obligations.[36] But where the statute is clear, the court’s duty is to give effect to it whether or not that would involve breach of a treaty obligation.[37] It is furthermore clear that the courts do not have jurisdiction to adjudicate upon rights and obligations arising out of transactions between sovereign states.[38] 44.In a passage which addresses all of the foregoing points in the context of the European Convention on Human Rights (“ECHR”), Lord Hoffmann stated:
F. The appellant’s challenge to the constitutional validity of HKBORO section 11 F.1 The content of section 11 45.Section 11 provides:
46.Whether in any particular case section 11 has the effect of precluding someone’s reliance on a right protected by the BOR may raise questions of law and construction, as well as questions of fact.
47.In the present case, there is no dispute that the appellant is a person “not having the right to enter and remain in Hong Kong”, nor that the deportation order was made under section 20(1)(a) of the Immigration Ordinance which is a provision governing a person’s stay in or departure from Hong Kong. The Court of Appeal held that section 11 was triggered and that it precluded reliance by the appellant on either BOR Art 11(6) as protection against double jeopardy; or on BOR Art 3 as protection against being deported to face CIDTP. F.2 The elements of the appellant’s constitutional challenge 48.The appellant contends that section 11 is unconstitutional and must either be read down or severed from HKBORO altogether so that it does not preclude his reliance on the BOR rights invoked.[41] 49.His challenge proceeds on two alternative bases, each of which requires an examination of the interaction between (i) the reservation relating to immigration legislation (“the immigration reservation”) made by the United Kingdom Government when ratifying the ICCPR in 1976; (ii) Article 39 of the Basic Law; and (iii) section 11. 50.The immigration reservation was stipulated in the following terms:
51.The extension to Hong Kong of the ICCPR subject to the immigration reservation therefore meant that the Hong Kong Government reserved mutatis mutandis the right to continue to apply such immigration legislation governing entry into, stay in and departure from Hong Kong as it might deem necessary from time to time and, accordingly, that its acceptance of Article 12(4) and of the other provisions of the Covenant was subject to the provisions of any such legislation as regards persons not at the time having the right under the law of Hong Kong to enter and remain in Hong Kong. 52.Article 12(4) of the ICCPR provides: “No one shall be arbitrarily deprived of the right to enter his own country.” 53.The text of Article 39 of the Basic Law has been set out in Section B above. For the purpose of understanding the appellant’s constitutional challenge, it is sufficient to note that Article 39 provides that “The provisions of the [ICCPR] ... as applied to Hong Kong shall remain in force and shall be implemented through the laws of the [HKSAR]”. It is common ground (and plainly correct) that the words I have italicised refer to the original application of the Covenant to Hong Kong by the United Kingdom when it ratified the ICCPR in 1976 and declared that its acceptance extended to Hong Kong. Such application was obviously subject to the stipulated reservations, including the immigration reservation. 54.The third element relevant to the appellant’s constitutional challenge is section 11, the provision subject to such challenge. The respondents’ position is that enactment of the HKBORO, including section 11, was the manner by which the ICCPR was duly implemented through the laws of the HKSAR as mandated by Article 39. However, the appellant argues on two alternative bases that, far from implementing the Covenant, section 11 is unconstitutional because it goes much further than the immigration reservation and impermissibly purports to cut down on the rights guaranteed by Article 39 properly construed. F.3 The appellant’s first constitutional argument 55.The premise of the appellant’s first constitutional argument is that the scope of the United Kingdom’s 1976 immigration reservation, and thus the scope of such reservation “as applied to Hong Kong,” has long been misunderstood and given far too wide a meaning. The contention is that such reservation correctly understood:
56.The UK’s concern, so it is suggested, was that the ICCPR would be taken to cover all British territories as a single “country” so that a British subject who was not given the right to enter and reside in the UK (particularly a British Asian in East Africa[43]) might claim a right under Article 12(4) not to be arbitrarily deprived of the right to enter his own country.[44] 57.The appellant submits[45] that properly construed in the light of that purpose, the effect of the immigration reservation as extended in 1976 to Hong Kong (and to each of the other British territories then existing) was that:
58.Thus, the argument runs, when Article 39 provides that the provisions of the ICCPR “as applied to Hong Kong” shall remain in force and be implemented through the HKSAR’s laws, it takes effect by applying the ICCPR to Hong Kong subject to the immigration reservation narrowly construed in the manner just described. Article 39 therefore does not authorise or permit any greater inroads into the ICCPR rights which it protects. 59.Section 11 is drawn (so it is argued) in much wider terms than permitted since it is not limited in the manner indicated above. It is therefore unconstitutional and, in approaching section 11 as if it faithfully reflects the immigration reservation, the Court of Appeal is said to have fallen into error. 60.The argument that section 11’s reach is too wide and therefore unconstitutional proceeds on the footing that the respondents’ construction is correct and that section 11 “trumps” all the provisions of the BOR, including BOR Art 3 which prohibits torture and CIDTP. As I have already indicated, the correctness of that construction was called into question by the Court and is discussed in Section G below. However, the appellant’s position is that any construction of section 11 which goes beyond the strictly narrow interpretation that he advocates exceeds what is authorised by Article 39, making section 11 unconstitutional in any event. 61.For the reasons which follow, I do not accept the appellant’s first constitutional argument. F.3.1 What is addressed by the reservation as applied to Hong Kong 62.In my view, the issues arising are not resolved by reference to what may have motivated the United Kingdom Government in 1976 when it laid down the immigration reservation while ratifying the Covenant, especially if adopting that approach involves ignoring the fundamental changes to Hong Kong’s legal order which have occurred during the intervening 36 years. 63.One may readily accept that the United Kingdom was anxious in 1976 to continue to enact and enforce laws aimed at preventing an influx into Britain of citizens of its colonies and dependent territories to whom it had chosen to deny a right of abode. An important objective of the immigration reservation from its own point of view would thus have been (as the appellant submits) to prevent such a person from claiming on the basis of ICCPR Art 12(4), that he had a right to enter United Kingdom as “his own country”. 64.However, to suggest that the immigration reservation must be construed as pursuing that limited objective, transplanted in some way to Hong Kong, makes little sense. Hong Kong was not faced in 1976 (or at any other time) with any threatened influx of British subjects from other British colonies or dependent territories who might, but for the immigration reservation, be able to claim a right to enter and reside in Hong Kong as their “own country”. There is no reason to regard the neutralisation of ICCPR Arts 12(1) and 12(4) as the exclusive or principal reason for applying the immigration reservation to Hong Kong. 65.On the other hand, it is a matter of notoriety that in the 1970’s, 1980’s and 1990’s, major efforts had to be made by the Hong Kong Government to fend off waves of illegal immigrants, numbering in the tens of thousands in some years, originating from the Chinese Mainland.[47] With a view to dealing effectively with such illegal immigrants and human traffickers (or “I.I.s” and “snakeheads”) as they were called, the Hong Kong Government adopted robust legal measures authorising removal and deportation with associated arrest and detention powers. The immigration reservation, operating in that context, was aimed at preventing illegal immigrants from seeking to resist such measures by relying on a range of potentially applicable ICCPR rights. 66.By way of example, in In re Hai Ho-tak and Cheng Chun-heung,[48] section 11 was relied on in response to an application to quash a removal order as a violation of BOR Art 1 (non-discrimination), Art 14(1) (privacy, etc), Art 15(4) (liberty of parents regarding children’s education), Art 20(1) (rights of children) and Art 22 (equal protection of the law). And in Vo Thi Do v Director of Immigration,[49] a test case involving 1,376 former residents of Vietnam, prolonged administrative detention was challenged as a violation of Art 3 (CIDTP) and Art 5 (liberty of the person). Numerous other cases have arisen where reliance was placed on Art 19 (family rights). 67.The language of the reservation as applied to Hong Kong has been treated as apt for dealing with such claims, making acceptance of Art 12(4) “and of the other provisions of the Covenant” subject to the provisions of existing legislation and any future legislation which the Government may deem necessary to enact to govern entry into, stay in and departure by persons who do not have the right to enter and remain in Hong Kong. There is no basis for accepting Mr Gordon’s submission that the immigration reservation was applied to Hong Kong with the narrow intention that it be centred on the right under ICCPR 12(4) to enter one’s “own country”. 68.The United Kingdom and Hong Kong Governments have acknowledged that the ICCPR reservations as extended to Hong Kong were targeted at local conditions and needs. Thus, a White Paper published in the UK on 26 September 1984 and reproduced by the Hong Kong Government in December 1984 in a document explaining aspects of the Joint Declaration stated:
69.Moreover, when on 16 March 1990, the Hong Kong Government gazetted the draft HKBOR Bill 1990 and initiated a process of public consultation, it published a Commentary stating that the decision had been taken to introduce a draft Bill “giving effect in local law to the relevant provisions of the ICCPR, as applied to Hong Kong”. The Commentary explained that previously, the ICCPR had been implemented through a combination of common law, legislation and administrative measures, a system which:
70.In other words, even before enactment of HKBORO, the application of the ICCPR in Hong Kong had not been statically linked to a 1976 policy, but had undergone a process of domestication, evolving in accordance with local circumstances. F.3.2 The reservation as applied in the HKSAR 71.The idea that the interpretation of the immigration reservation should be limited by a purposive construction founded on the United Kingdom’s immigration policy in 1976 appears even more incongruous when one takes into account developments accompanying the changes to Hong Kong’s legal order which took place on 1st July 1997. 72.The question of whether the provisions of the ICCPR should continue to apply in Hong Kong was specifically addressed by the Central People’s Government and the United Kingdom Government in the negotiations leading up to the Joint Declaration. Agreement that the ICCPR “as applied to Hong Kong shall remain in force” was eventually recorded in Annex I, section XIII of the Joint Declaration executed on 19 December 1984, coming into force on 30 June 1985. 73.HKBORO was enacted on 8 June 1991 and, along with other Ordinances as well as Orders in Council containing measures applied by the UK to Hong Kong, it was subjected to the vetting process prescribed by Article 160 of the Basic Law which materially states as follows:
74.The Standing Committee gave specific consideration to whether the HKBORO should be adopted as part of the laws of the HKSAR or whether the whole or any part of it should be excluded as contravening the Basic Law. The role played by the Standing Committee under Article 160 and the vetting process as reported to the Legislative Council, were described in Democratic Republic of the Congo v FG Hemisphere Associates LLC.[50] 75.By its Decision adopted at the Twenty Fourth Session of the Standing Committee of the Eighth National People’s Congress on 23 February 1997, the Standing Committee set out (in Annex 1 to the Decision) a list of Ordinances and subordinate legislation found to be in contravention of the Basic Law and not adopted. It also set out in Annex II, a list of specified provisions of named Ordinances and subordinate legislation similarly excluded. Certain provisions of HKBORO[51] which are not presently material were listed in paragraph 7 of Annex II as excluded provisions, but section 11 and the remaining provisions of HKBORO were adopted as consistent with the Basic Law. 76.The stated objective of the Article 160 exercise (applicable generally to the laws previously in force in Hong Kong) was to bring such laws “into conformity with the status of Hong Kong after resumption by the People’s Republic of China of the exercise of sovereignty over Hong Kong as well as to be in conformity with the relevant provisions of the Basic Law.”[52] It is this process whereby HKBORO was adopted as part of the laws of the HKSAR, consistent with the Basic Law – and not the UK’s immigration policy in 1976 – that provides the operative legal context for the continued application of the ICCPR in the HKSAR. 77.The point is brought home by noting the content of BOR Art 8(4) which is the provision whereby ICCPR Art 12(4) was enacted in 1991 and adopted as part of the laws of the HKSAR in 1997. BOR 8(4) states: “No one who has the right of abode in Hong Kong shall be arbitrarily deprived of the right to enter Hong Kong.” 78.Thus, the BOR guarantee of the right to enter Hong Kong is limited to persons who have the right of abode in Hong Kong. There is no need to rely on section 11 to override any BOR right reflecting ICCPR Art 12(4)’s reference to “the right to enter his own country” which might otherwise be invoked by someone without a right of abode. F.4 The appellant’s second constitutional argument 79.The appellant advances an alternative challenge to the constitutionality of section 11 which runs as follows:
80.The contention in sub-paragraph (a) above is based on Article 19(c) of the Vienna Convention on the Law of Treaties which provides:
81.The appellant argues that if the immigration reservation is read to mirror the terms of section 11 widely construed, the reservation would purport to disapply the entire ICCPR in relation to relevant provisions of immigration legislation applicable to persons not having the right to enter and remain in Hong Kong. It would purport to disapply even the prohibition against torture and CIDTP under BOR Art 3, thereby offending international law jus cogens norms and contravening the object and purpose of the Covenant.[54] 82.Since, so the argument runs, such a purported reservation is null and void, it is severed from the instrument of ratification.[55] In consequence, as a matter of domestic law:
83.I do not accept this argument. F.4.1 Non-justiciable issues 84.For the reasons stated in Section E above, the alternative argument depends on propositions which are not justiciable in a municipal court. The appellant invites this Court to declare that, contrary to the belief of the United Kingdom Government (and everyone else, it would seem) when ratifying the Covenant in 1976, its immigration reservation was incompatible with the object and purpose of the treaty and therefore “null and void as a matter of public international law” requiring it to be “severed from the instrument of ratification.”[57] 85.As previously noted, the courts do not have jurisdiction to adjudicate upon rights and obligations arising out of transactions between sovereign states on the international plane. As Lord Oliver of Aylmerton stated in JH Rayner Ltd v Department of Trade and Industry:[58]
86.The Hong Kong courts therefore did not in 1976 and do not now have jurisdiction to pronounce upon the validity or invalidity of the UK’s ratification, with or without its immigration reservation, as a matter of public international law. 87.The appellant attempts to evade this difficulty by submitting:
88.But it is impossible to see how the appellant’s argument can proceed unless the Court is persuaded precisely to pronounce upon the legal effect of the instrument of ratification – namely, that the reservation is void and must be severed from it as a matter of public international law – and then to project that legal consequence onto the interpretation of Article 39 thereby rendering section 11 unconstitutional. F.4.2 Section 11 regarded as valid as a matter of Hong Kong law 89.As a matter of Hong Kong law, the Hong Kong courts have invariably viewed section 11 (without qualifying it by any narrow construction) as consistent with the immigration reservation and with Article 39. This is a point equally relevant to the first limb of the appellant’s challenge. 90.Prior to 1st July 1997, the question arose in Wong King-lung v Director of Immigration,[60] as to whether the immigration reservation, taken to be reflected in the terms of section 11, was valid. Having noted that the ICCPR could be modified by a reservation provided it was not incompatible with the objects and purpose of the Covenant, Jones J held that section 11 was consistent with those aims. 91.In In re Hai Ho-tak and Cheng Chun-heung,[61] the Court of Appeal held that section 11 precluded reliance on BOR Art 14 (prohibiting unlawful interference with family life). Mortimer JA commented that:
92.As we have seen,[62] in preparation for the 1997 transition, acting pursuant to Article 160 of the Basic Law, the Standing Committee of the National People's Congress by its Decision[63] of 23 February 1997, disallowed certain presently immaterial provisions of HKBORO, but otherwise confirmed adoption of the rest of the Ordinance, including section 11, as part of the laws of the HKSAR at least prima facie[64] consistent with the Basic Law. 93.Since 1st July 1997, section 11 has been discussed on a number of occasions in this Court without anyone detecting any inconsistency between that provision and either the original immigration reservation or Article 39 of the Basic Law.
94.In Tam Nga Yin v Director of Immigration,[68] the Court was concerned with the question whether BOR Art 19(1)[69] was displaced by section 11. The majority[70] recognized that:
But the Director’s argument for displacement was rejected on the basis that the case was not concerned with relevant immigration legislation, the majority concluding as follows:
95.In Gurung Kesh Bahadur v Director of Immigration,[72] Li CJ (with whom the other members of the Court agreed) acknowledged that the immigration reservation was reflected in section 11:
F.5 Conclusion as to the appellant’s constitutional challenge 96.For the foregoing reasons in my view, both limbs of the appellant’s challenge to the constitutionality of section 11 must fail. I therefore conclude that section 11 is consistent with Article 39 and constitutionally valid. I turn then to a consideration of the reach or scope of section 11 on its proper construction. G. The scope and effect of section 11 G.1 The central question 97.Section 11’s content and application have been examined in Section F.1 above. The central and controversial question concerning the reach of section 11 arises when one juxtaposes section 11 with section 5 of HKBORO. For convenience, I set out the terms of section 11 once more:
98.Section 5 relevantly states:
99.Section 5(2)(c) therefore precludes derogation from BOR Art 3 relied on by the appellant. By the same token, BOR Art 11(6), also relied on by him, is not mentioned. 100.On its face, section 11 excludes all the provisions of HKBORO (and therefore all the rights contained in the BOR) without exception or qualification in relation to the persons and immigration legislation provisions within its ambit. However, sections 5 and 11 are provisions in the same Ordinance and it is obviously necessary when construing section 11 in order to ascertain its scope, to read it in the context of HKBORO as a whole. Thus, in addressing the question whether the legislative intention is that section 11 should override all BOR rights without exception, including BOR Art 3, it is of cardinal importance to note that section 5 provides that there can be no derogation from BOR Art 3 even in times of “public emergency which threatens the life of the nation”. 101.The central question for immediate purposes is therefore whether the legislature could have intended that section 11 should be allowed to preclude reliance on BOR Art 3 in respect of immigration legislation powers routinely exercised, while at the same time laying it down in section 5 that there can be no derogation from BOR Art 3 even in the time of a proclaimed public emergency which threatens the life of the nation. Does section 11’s exclusion of reliance on BOR Art 3 not constitute a derogation from BOR Art 3? Since section 5 prohibits derogation even in a time of public emergency, does it not suggest that a fortiori derogation from that Article is not allowed where no such emergency exists? If there is an apparent conflict between the two sections, which is to prevail? In seeking to answer these questions, the nature and interaction of the two sections and the nature of the rights protected by BOR Art 3 fall to be examined. G.2 The effect of section 11 102.It is perhaps worth emphasising that the present topic of discussion concerns merely the construction of section 11. There is no question of that section being unconstitutional. As I have previously concluded, in adopting the ICCPR as applied to Hong Kong, Article 39 applied the Covenant subject to the immigration reservation made at the time of the United Kingdom’s ratification. And as previously discussed, section 11 is consistent with that reservation. It follows that section 11 has the blessing of Article 39 and cannot be unconstitutional. Moreover, Article 154(2) of the Basic Law expressly authorises the HKSAR Government to “apply immigration controls on entry into, stay in and departure from the Region by persons from foreign states and regions”. The question under discussion is therefore whether section 11, properly construed, precludes reliance on BOR Art 3 when it disapplies HKBORO from affecting any immigration legislation governing entry into, stay in and departure from Hong Kong in relation to persons not having a right to enter or remain in Hong Kong. 103.Placing that question in a broader context, it may be noted that the European Court of Human Rights in Strasbourg (“ the Strasbourg Court”) has consistently taken as its starting-point, the proposition that under the ECHR:
104.The House of Lords has taken the same view. Thus, in R (Saadi) v Secretary of State for the Home Department,Lord Slynn of Hadley stated:[74]
105.In Hong Kong, the extent to which the Government’s exercise of such powers is limited by its treaty obligations, or more accurately, by the constitutional protections conferred domestically by BOR Art 3, depends on resolving the question under discussion, namely, as to the scope and reach of the exclusionary provisions of section 11 in relation to rights having the character of the rights protected by BOR Art 3. G.3 The effect of section 5 in relation to BOR Art 3 106.Section 5(2)(c) entrenches the prohibition against torture and CIDTP laid down by BOR Art 3 against derogation even in the extreme situation of a public emergency which threatens the life of the nation. If it is non-derogable in such circumstances of acute danger, it is impossible to imagine any circumstance in which derogation is permitted. Furthermore, that BOR Art 3, made non-derogable by section 5, has additionally the status of an absolute right is demonstrated by the jurisprudence of the Strasbourg and United Kingdom courts. I hasten to add that these comments are directed solely at section 5(2)(c) insofar as it relates to BOR Art 3. I am not suggesting that all the rights listed in section 5(2)(c) as non-derogable are also to be classified as absolute, as I explain further below.[75] 107.Section 5 derives from Article 4 of the ICCPR.[76] It also largely mirrors Article 15 of the ECHR which is materially in the following terms (with my insertions in square brackets):
108.In 1978, the Strasbourg Court held that ECHR’s Art 3 prohibition against torture and CIDTP[77] was both non-derogable by virtue of Article 15 and absolute:
109.This was re-iterated in the important case of Soering v United Kingdom,[79] with the Court pointing out that the provision reflects an internationally accepted standard:
110.This has been accepted in the House of Lords. In R (Ullah) v Special Adjudicator,[80] Lord Steyn, undertook what he called a “brief tour d'horizon” of the various ECHR rights and concluded that Art 3’s prohibition of torture and CIDTP was an absolute right. Lord Steyn also highlighted the absolute nature of the prohibition of CIDTP in Privy Council cases in which he dissented on the immediate issue of delay in death penalty cases, but where his statement of principle is not in question. Thus, in Higgs v Minister of National Security,[81] an appeal from The Bahamas, in relation to Article 17 of the Bahamian Constitution which is in the same terms as ECHR Art 3, his Lordship stated:
111.In R (Limbuela) v Secretary of State for the Home Department,[82] Lord Hope of Craighead summarised the position regarding the absolute nature of the torture and CIDTP prohibition in ECHR Art 3 as follows:
112.In this Court in Secretary for Security v Sakthevel Prabakar,[83] although spoken in the different context of a challenge mounted on the basis of the Covenant Against Torture which did not raise section 11 issues, Bokhary PJ stated:
G.4 Conclusion as to the scope and effect of section 11 113.As the Court laid down in Ng Ka Ling v Director of Immigration,[84] constitutional instruments must generally be interpreted purposively. That applies of course to the Basic Law but also to HKBORO which is given constitutional force by Article 39. Li CJ put this as follows:
114.In my judgment, the clear words of section 5 establish the non-derogable character of the right not to be subjected to torture or CIDTP protected by BOR Art 3. It is also clear from the highly persuasive jurisprudence of the Strasbourg Court and the House of Lords in relation to the closely analogous provisions of the ECHR that BOR Art 3 rights are not only non-derogable but also absolute. Such jurisprudence shows that the absolute character of the protection against torture and CIDTP is an internationally accepted standard or, as Lord Steyn puts it “a universal minimum standard”. 115.Accordingly, any apparent conflict between section 5 and section 11 or any ambiguity as to the statutory purposes of those provisions should be resolved by giving precedence to section 5, according decisive weight to the non-derogable and absolute character of the rights protected by BOR Art 3. Therefore, construed purposively, section 11 must be read as qualified by section 5. Section 11 must be understood to exclude the application of HKBORO and BOR in relation to the exercise of powers and the enforcement of duties under immigration legislation regarding persons not having the right to enter and remain in Hong Kong except insofar as the non-derogable and absolute rights protected by BOR Art 3 are engaged. 116.The aforesaid approach is consistent with the adoption of a generous construction of provisions conferring rights and a narrow construction of provisions restricting rights endorsed by this Court in Ng Ka Ling.[86] This was re-iterated by Li CJ in Gurung Kesh Bahadur v Director of Immigration as follows:[87]
G.5 The respondents’ arguments against that conclusion 117.Mr Benjamin Yu SC, appearing[88] for the respondents advanced four arguments against reaching the abovementioned conclusion. G.5a HKBORO section 2(2) 118.First, he relied on HKBORO section 2(2) which provides that “The Bill of Rights is subject to Part III”. Section 11 is in Part III and therefore, so it is argued, overrides the rights contained in the BOR. 119.That argument cannot be accepted. It merely restates but does not answer the central question. The issue remains: What on its true construction is the scope of section 11 to which the BOR is made subject? G.5b Derogation vs reservation 120.Secondly, Mr Yu SC sought to distinguish between sections 5 and 11 on the basis that they involve quite different concepts and “do different things”. Section 11 is a reservation which is made at the time of ratification of the Covenant, by which the Contracting State declines to take on specified obligations; while section 5 is concerned with derogations which involve withdrawing from Covenant obligations originally undertaken. 121.In my view, that distinction has no relevance to the discussion at hand. Sections 5 and 11 in HKBORO are not concerned with the processes of reservation or derogation. It is nothing to the point to state that such processes are different. The relevance of section 5(2)(c) lies in its declaration that the process of derogation in respect of BOR Art 3 is unavailable at any time – even in the time of a proclaimed public emergency which threatens the life of the nation. As the review of the Strasbourg and United Kingdom decisions in Section G.3 above shows, section 5(2)(c) thereby acknowledges or confers on BOR Art 3 the status of an absolute, non-derogable right entitled to dominance over section 11. G.5c A matter which should be left to the Director’s discretion 122.Mr Yu’s next submission was that the Court should recognize that the legislature has decided that the exercise of immigration powers within the ambit of section 11 is to be left in the discretion of the Director of Immigration and should accordingly steer clear of interfering. He sought to draw support from Lord Hoffmann’s observation in Matadeen v Pointu,[89] that non-justiciable questions may exist and that one should not believe that it must always be the judges who have the last word. Mr Yu added that the Court could take comfort from the fact that if the proposed approach is adopted, the Director would still be subject to the usual administrative law constraints against any unlawful exercise of his discretion. 123.Matadeen was a case concerned with equality of treatment of pupils in respect of school subjects, examinations and school places. Lord Hoffmann[90] was commenting on an attempt by one of the parties to rely on a principle of equality amorphously described as “permeating” the Mauritian constitution as the basis for deciding the case. It was in that context that he observed that while equality might represent a general principle of rational behaviour, it did not necessarily entail a justiciable principle. 124.Matadeen was, in other words, a world away from a case involving non-derogable fundamental rights. By section 7 of the HKBORO, the Ordinance binds the Government, all public authorities and any person acting on their behalf, obviously including the respondents. The question now arising is quintessentially a question for the Court: What, on its true construction, is the scope and effect of a legislative provision which purports to exclude a class of persons in Hong Kong from relying on the rights constitutionally protected by BOR Art 3 when such rights are engaged by the exercise of statutory powers vested in the respondents? To say that the Court should be content to let such powers reside in the Director’s discretion begs the crucial question. 125.When taxed by the Court, Mr Yu was constrained to accept that the logic of his argument is that it may be lawful for the Director to exercise his discretion in favour of deporting a person who falls within section 11 even though there is incontrovertible evidence that such deportation almost certainly means sending him to face torture or CIDTP (which would otherwise be prohibited by BOR Art 3); or even sending him to face being arbitrarily deprived of his life (otherwise prohibited by BOR Art 2). That submission is, to say the least, deeply unattractive. 126.If, as duly determined by the Court, the true reach of section 11 falls short of displacing BOR Art 3 classified as an absolute, non-derogable right, any inconsistent action by the respondents would constitute a constitutional violation for which redress is granted as of right and not subject to discretionary considerations. Such a violation would not merely be justiciable: the Court would be duty bound to intervene. In a well-known passage in Ng Ka Ling,[91]this was emphasised by Li CJ as follows:
127.Mr Yu’s third submission must therefore be rejected.
128.Mr Yu’s final argument against construing section 11 to have a limited reach involved his reliance on Harding v Wealands,[92] for the proposition that the Court should construe the provision in line with what the legislature must be taken to have understood the law to be when enacting the statute, even if the legislature’s view of the law is later shown to have been wrong. 129.I do not accept that Harding v Wealands has any relevance in a case like the present. The issue in Harding v Wealands was whether damages for personal injury arising out of an accident in New South Wales should be calculated according to the law of NSW, selected as the applicable law under a certain English statute, or whether such damages involved a question of procedure falling to be determined in accordance with English law, being the law of the forum. The English statute had been enacted to cure a perceived defect in the pre-existing conflicts rule and it was therefore pertinent to ask what Parliament’s understanding of the law was at the time of that statute’s enactment, whether or not Parliament’s view is thought to have been correct.[93] 130.We are not concerned with any such exercise in the present case. It is true, as Mr Yu points out, that Hong Kong case-law on section 11 appears uniformly[94] to have treated section 11 as displacing the rights contained in the BOR. However, with the exception of Vo Thi Do and Others v Director of Immigration,[95] in none of those cases, was there any attempt to rely on BOR Art 3 or indeed, any of the other rights listed in HKBORO section 5. 131.In Vo Thi Do, a case brought by Vietnamese asylum seekers who complained of their very prolonged administrative detention, it was alleged, among other complaints, that such detention constituted CIDTP in violation of BOR Art 3. Section 11 was relied on and issue was joined as to whether detention of the applicants was pursuant to immigration legislation governing their stay in Hong Kong. The Court of Appeal held that section 11 was triggered but added:
Vo Thi Do was thus a case where the Court did not enter into any analysis of whether those rights were ousted by section 11. 132.More importantly, in none of the decided cases brought to this Court’s attention, was the argument based on the juxtaposition of sections 5 and 11 made or considered. It is therefore impossible to suggest that in enacting those two sections as provisions co-existing within HKBORO, the legislature were making any assumptions one way or the other as to their inter-relationship in law. 133.For the foregoing reasons, I am not dissuaded by any of the arguments advanced on the respondents’ behalf from reaching the conclusion set out in Section G.4 above. G.6 Why the foregoing analysis does not necessarily apply to the other rights listed in section 5 134.As I have been at pains to stress, this judgment confines itself to the relationship between sections 5 and 11 on the one hand and BOR Art 3 and BOR Art 11(6) on the other. The other rights listed in section 5(2)(c) have not been argued and nothing in this judgment is intended to rule on section 11’s relationship with those rights. I will, however, say a few words as to why one should not too readily extrapolate from what is said in this judgment to those other rights. 135.In the first place, it does not follow from the conclusion that the right against being subjected to CIDTP protected by BOR Art 3 is both non-derogable and absolute, that the same applies to all the other rights listed in section 5(2)(c). The listed rights are those protected by the following Articles of the BOR, namely: Art 2 [right to life], Art 4(1) and (2) [slavery and servitude], Art 7 [no imprisonment for breach of contract], Art 12 [no retrospective criminal offences], Art 13 [right to recognition as person] and Art 15 [freedom of thought, etc]. Some of these rights may be non-derogable by virtue of section 5 but not absolute, with the consequence, for instance, that statutory qualification of such rights may be permissible if justifiable upon a proportionality analysis. 136.The Human Rights Committee in General Comment No 24[97] recognized the distinction between non-derogable and absolute or peremptory rights as follows:
137.One may accordingly observe, without deciding, that there is an obvious difference between say, the prohibition of arbitrary deprivation of life on the one hand and imprisonment for breach of contract on the other, the reasons for each being included as non-derogable rights in section 5 (and ICCPR Art 4) being quite different, as explained in the extract from General Comment 24 just cited. 138.It is moreover self-evident that aspects of the right to freedom of thought, conscience and religion, protected by BOR Art 15 are not absolute since the article provides for possible qualification of rights relating to the manifestation of religious beliefs in its own paragraph 3.[98] 139.There are likely to be other differentiating considerations relevant to a case involving section 11 and the other section 5 rights. It suffices for the present to re-iterate that this judgment does not stray into that territory. 140.It is also important to note that some of the case-law[99] holding that certain rights additional to those listed in the relevant Articles[100] falling short of CIDTP “cannot be excluded” from being considered non-derogable and/or absolute must be treated in our jurisdiction with great caution especially in the context of deportation or removal because of the necessity to take account of section 11. H. The consequences of the construction of section 11 here adopted. 141.What then are the main consequences – in the particular context of deportations and removals – of holding, as I have done, that the subjugation of HKBORO by section 11 does not extend to precluding reliance on rights under BOR Art 3, being non-derogable and absolute rights? H.1 The deportee’s conduct and proportionality 142.The first two consequences are related. Provided that the risk and severity of the prospective ill-treatment are duly established in the manner discussed below,[101] the first consequence of the right not to be subjected to CIDTP being an absolute right is that the proposed deportee cannot be exposed by the Government to such risk, however objectionable may be his conduct or character supplying the ground for his proposed expulsion. 143.Thus, in Chahal v UK[102] the Strasbourg Court stated:
144.Similarly, in RB (Algeria) v Home Secretary,[103] another deportation case, Lord Phillips of Worth Matravers stated:
145.The second and related consequence is that the Government cannot justify any infringement of the absolute BOR Art 3 right on the ground that the deportation satisfies a proportionality analysis. Thus, in R (Limbuela) v Secretary of State for the Home Department,[104] Lord Hope of Craighead pointed out:
H.2 Applicability of the rights in expulsion cases 146.The third major consequence concerns the applicability of BOR Art 3 rights in expulsion cases. The authorities just cited proceed on the assumption that the prohibitions contained in BOR Art 3 apply not merely in respect of CIDTP within the territory of the deporting State, but also where a sufficient risk is shown of the deportee facing CIDTP in the country to which he is being deported. It is not obvious why this should be so and some further discussion is called for. H.2a Covenant rights generally subject to territorial limits 147.The purpose of enacting HKBORO and its adoption as part of the laws of the HKSAR, was to implement the Covenant as part of our domestic law. This is reflected in HKBORO’s long title which states that it is:
148.What the Covenant, thus made part of our law, requires of the parties is stated in its Art 2(1):
149.The ICCPR and the HKBORO are therefore intended, prima facie at least, to safeguard rights only within the HKSAR’s territory in relation to persons subject to its jurisdiction. 150.Article 1 of the ECHR is to similar effect. It provides:
151.The Strasbourg Court in Soering v United Kingdom[105] acknowledged that this had the effect of setting territorial limits on Convention obligations:
152.Lord Bingham of Cornhill also acknowledged this in R (Ullah) v Special Adjudicator,[106] drawing a parallel with ICCPR Art 2:
H.2b Extension of the rights to “foreign cases” 153.In the same judgment,[107] Lord Bingham contrasted “domestic cases” with what he called “foreign cases” which are:
154.The extension of the rights protected by BOR Art 3 to operate in relation to such foreign cases is traceable to the judgment of the Strasbourg Court in Soering v United Kingdom.[108] That was a case involving a request by the United States for the extradition of a German national from the United Kingdom on charges of murdering the parents of his girlfriend in Virginia. Extradition was resisted on the ground that, if convicted, he would face CIDTP as a result of “the death row phenomenon” which defendants sentenced to death for capital murder face in Virginia, especially given that the applicant suffered from psychiatric problems. If the UK acceded to the United States’ request, it would obviously not itself be committing any acts of CIDTP within its own territory. So the issue facing the Strasbourg Court, was described by it as follows:
155.The Court acknowledged that usually Covenant obligations were subject to territorial limits but held that such considerations “cannot ... absolve the Contracting Parties from responsibility under Article 3 for all and any foreseeable consequences of extradition suffered outside their jurisdiction.”[110] It decided that:
156.Turning to ECHR Art 3, the Court (in a passage already cited above) noted that it imposed an “absolute prohibition on torture and on inhuman or degrading treatment or punishment” and that it represented an internationally accepted standard.[112] The Court’s observed that therefore:
157.The Court justified such a departure from the normal territorial principle on the basis of the particularly serious and irreparable nature of CIDTP, absolutely prohibited by Art 3:
158.The Court summarised its conclusion in the following terms:
159.Soering has since been followed on many occasions.[116] In the recent decision in Al Husin v Bosnia and Herzegovina,[117] the Soering approach was summarised in these terms:
160.The third consequence of reaching the conclusion stated at the start of Section H above is therefore that a sufficiently established threat of BOR Art 3 being violated by the receiving country if the deportee should be sent there constitutes a ground for restraining the Hong Kong Government from proceeding with the deportation. I. The double jeopardy ground 161.Having dealt with the principles, I turn to their application on the facts of this case. The double jeopardy ground can be dealt with quite shortly. 162.The appellant’s challenge to the deportation order founded on BOR Art 11(6) must fail. Section 11 precludes reliance on that provision. The right which it protects, namely, the right not to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of Hong Kong is neither non-derogable (not being mentioned in section 5) nor absolute. 163.That disposes of this first ground of challenge. However, as two further grounds for rejecting that challenge were relied upon by the Court of Appeal I will deal briefly with them. 164.I respectfully agree both with Reyes J and the Court of Appeal that an additional ground for concluding that BOR Art 11(6) does not avail the appellant is that it only applies within the territorial limits of the HKSAR. As noted in Section H.2a above, Covenant rights generally operate within such limits, an exception having been made in respect of BOR Art 3 because of the absolute character and non-derogable character of the prohibition of CIDTP and the severe and irreparable harm it entails. There are no grounds for making such an exception in relation to BOR Art 11(6). 165.This conclusion is consistent with the position taken by the parties to the Covenant as revealed in the travaux préparatoires[118] and in Communications of the Human Rights Committee.[119] It also coincides with the view expressed by Tang JA (as Tang PJ then was) in Yeung Chun Pong v Secretary for Justice;[120] and with the opinion expressed by Sir Anthony Mason NPJ in this Court in the same case.[121] 166.The Court of Appeal’s third reason for holding that the appellant cannot rely on BOR Art 11(6) is that such protection only applies to the narrow, autrefois convict or acquit heads of double jeopardy and not to the broader common law rule empowering the Court to stay proceedings as an abuse of process. 167.It is a ground that involves arguing that prosecution of the appellant under the Nigerian law would constitute the broader form of double jeopardy, leading to a debate as to whether such a prosecution falls within or outside BOR Art 11(6). However, given that I have held that BOR Art 11(6) does not apply in relation to double jeopardy arising through a prosecution in a foreign state, this question does not actually arise in the present case and does not require further discussion. This third ground does, however, flag an issue which may have to be faced in a purely domestic case. But that is not a matter to be dealt with in this judgment. 168.Accordingly, for the foregoing reasons, I conclude that BOR Art 11(6) does not avail the appellant as a basis for challenging the deportation order. J. The CIDTP ground J.1 Not precluded by section 11 169.Applying the analysis developed in Sections G and H of this judgment, section 11, properly construed, does not preclude the appellant from relying on BOR Art 3. 170.Accordingly, the concession[122] accepted by Reyes J was rightly made. In deciding that the concession had been wrongly made, the Court of Appeal did not of course have before it, the arguments based on the juxtaposition of sections 5 and 11 and the non-derogable and absolute nature of BOR Art 3 developed in this appeal. 171.The outcome of the case therefore depends on whether the appellant can bring himself within the terms of BOR Art 3 on the facts. J.2 What must be established factually 172.For him to do so successfully, he must meet two main requirements: he must establish (i) that the ill-treatment which he would face if expelled attains what has been called “a minimum level of severity” and (ii) that he faces a genuine and substantial risk of being subjected to such mistreatment. It is clear that a very high threshold must be surmounted to establish each of those requirements. 173.In R (Limbuela) v Secretary of State for the Home Department,[123] Lord Hope of Craighead, citing decisions of the Strasbourg Court, described what was required to meet the “minimum level of severity”, pointing out that it generally involves actual bodily injury or intense physical or mental suffering and that its assessment is ultimately a matter of judgment:
174.As to the degree of risk that the deportee must establish, it has variously been put as a requirement that he must show “substantial grounds ... for believing”[124] or “strong grounds for believing”[125] that if deported (or extradited) he faces a “real risk” of being subjected to torture or CIDTP. 175.Recently, the Strasbourg Court in Al Husin v Bosnia and Herzegovina,[126] endorsed the following approach:
176.In the Strasbourg context, the Court went on to state that the Court should assess the risk at the time of the proceedings, taking account of information that has come to light after the deportation decision was taken in order to ensure that the Court is able to make a “full and up-to-date assessment” of the current situation.[127] J.3 The facts in the present case 177.The appellant’s case on CIDTP is a based once again on the risk of double jeopardy. He contends that implementation of the deportation order would expose him to a risk of being re-prosecuted and punished afresh under the Nigerian law because of his drug-trafficking activities for which he has already been convicted and imprisoned for 16 years in Hong Kong. It is the impact on him of the prospect of such fresh proceedings and punishment which he says would constitute CIDTP. Reyes J accepted his submission and the appellant invites the Court to hold that the Court of Appeal was not entitled to reverse the Judge’s finding. 178.In reaching his conclusion that the appellant had successfully established a potential violation of BOR Art 3, Reyes J took into account the appellant’s age; the fact that he had spent 16 years in prison and had “expiated his crime”; and the fact that while he had incurred 11 disciplinary reports between 1994 and 2004, the appellant had “made an effort to turn his life around”, attending religious gatherings and becoming a model prisoner. His Lordship’s view was that the risk of being “detained, tried and sentenced to at least[128] 5 years’ imprisonment in relation to the same offence” would “self-evidently constitute a severe mental and psychological blow” to him, which “could well induce fear and anguish in him as a human being”.[129] He added:
179.Reyes J concluded that the aforesaid facts established that deportation would indeed constitute CIDTP so that the deportation order should be quashed:
180.The Court of Appeal reversed Reyes J because it did not:
181.I respectfully agree with the Court of Appeal’s conclusion. Whether the ill-treatment allegedly feared is of a nature which attains the minimum level of severity required; and whether the appellant has established substantial grounds for believing that, if deported, he would face a real risk of being subjected to such mistreatment, is a matter of judgment to be exercised with guidance from the relevant jurisprudence. In my opinion, the appellant falls far short of meeting both the substantial risk and minimum level of severity requirements. 182.I do not think that the “severe mental and psychological blow” and the severe “frustration” that he might experience at the prospect of facing “yet another trial and imprisonment in relation to precisely the same conduct” as found by the Judge comes anywhere near to meeting the threshold requirements discussed in Section J.2 above. Reyes J cited Soering but his Lordship does not appear to have focussed on the very high threshold of the requirements for establishing CIDTP, exemplified by instances where the mistreatment involves “actual bodily injury or intense physical or mental suffering” or mistreatment of an intensity “capable of breaking an individual’s moral and physical resistance” emphasised in the cases cited above. Moreover, it may be that Reyes J was influenced by his erroneous belief that the appellant faced a minimum of five years’ imprisonment if convicted. The Nigerian law does not prescribe any such minimum. 183.So far as the level of risk is concerned, there was a dearth of evidence that the appellant would be prosecuted, and if prosecuted and convicted, as to what sentence the Nigerian court was likely to impose. That is perhaps not surprising since in a letter from the Director of Immigration to the appellant dated 14 August 2008, which the appellant placed before the Court, it appears that there were very few convictions to date. The Director stated in the letter that there appeared to be conflicting evidence as to whether he would be prosecuted upon his return. He referred to country information that the National Drug Law Enforcement Agency had told a local newspaper that it would “make sure that anyone convicted of drug charges abroad” would be prosecuted under the Nigerian law. But on the other hand, he stated that someone from the Federal Ministry of Justice had indicated that “he was not aware of anyone being convicted a second time when a ‘full sentence’ had already been served overseas.” The letter continued:
184.As the Strasbourg Court pointed out in Al Husin, it is generally for the applicants to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, they would be exposed to a real risk of being subjected to treatment contrary to Article 3. The Court is also entitled to take account of the latest available evidence and so was entitled to consider the contents of the Director’s letter mentioned above. In the circumstances, the evidence fell far short of establishing substantial grounds for believing that the appellant faces a genuine risk of being subjected to CIDTP if the deportation order is carried out. The CIDTP must therefore fail. K. The CIL ground 185.This ground needs little discussion. The respondents’ objection to its introduction for the first time at this stage of the proceedings is well-founded. As stated in Flywin Co Ltd v Strong & Associates Ltd,[133] and many times since, the Court will not entertain a new point unless there is no reasonable possibility that the state of the evidence relevant to the point would have been materially more favourable to the other side if the point had been taken at trial. The respondents point out that they would have wished to put in evidence as to the practice of states and of juridical opinion regarding the existence and binding nature of the purported norm of CIL asserted by the appellant. 186.In any event, in the course of the hearing, Mr Gordon did not press this ground and accepted that on analysis, it was not a ground which could a achieve a different outcome from the outcomes arrived at respecting the grounds of challenge already discussed. L. The remitter issue 187.As earlier indicated, another point which Mr Gordon seeks to raise for the first time in this Court relates to what he describes as “a remedy”. He submits that if the Court is not satisfied that the facts presently relied on constitute CIDTP, it should order the case to be remitted to the Director for him to consider whether CIDTP is made out on the basis of a different set of facts relating to conditions in Nigerian prisons which are said to be appalling. 188.This suggestion has in fact nothing to do with any “remedy” and I see no conceivable basis for making such a remitter. In Reyes J’s judgment,[134] he makes the following observation:
189.It therefore appears that the decision was deliberately taken not to introduce any allegations concerning ill-treatment in Nigerian prisons or indeed, any grounds other than the “anguish” referred to. That was presumably thought to be a good tactic for whatever reason. Consequently, there has never been any suggestion that the Director has wrongly failed to take account of prison conditions and accordingly no basis for remitting the issue to him for consideration. M. Conclusion 190.For the foregoing reasons, I would dismiss the appeal. In the light of the fact that new issues arose at the Court’s instigation and in the light of the outcome, I would make an order nisi that there be no order as to costs. Any submissions which the parties may wish to make on costs should be lodged in writing within 14 days from the date of this judgment. I would direct that in default of such submissions, the order nisi should stand as an order absolute without further order. Mr Justice Tang PJ: 191.I agree with the judgment of Mr Justice Chan PJ and Mr Justice Ribeiro PJ. Lord Walker of Gestingthorpe NPJ: 192.I agree with the judgment of Mr Justice Ribeiro PJ. Chief Justice Ma: 193.The appeal is accordingly unanimously dismissed and the Court makes the order as to costs referred to in the final paragraph of Mr Justice Ribeiro PJ’s judgment.
Mr Richard Gordon QC, Mr Hectar Pun and Mr Timothy Parker, instructed by Tso Au Yim & Yeung and assigned by the Legal Aid Department, for the Appellant Mr Benjamin Yu SC, Professor Malcolm Shaw QC, Mr Anderson Chow SC and Ms Grace Chow, instructed by the Department of Justice, for the Respondents [1] As regard persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation. [2] No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. [3] Cap 383. [4] Initially promulgated as Decree No 33 of 1990. [5] Cap 115. Section 20(1)(a): (1) The Chief Executive may make a deportation order against an immigrant if the immigrant has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than 2 years; ...’ The order was made under powers delegated by the Chief Executive to the Secretary. [6] A (Torture Claimant) v Director of Immigration [2008] 4 HKLRD 752. [7] Contained in HKBORO, section 8. Article 5(1): “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” [8] ICCPR Art 14(7): “No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.” [9] Adopted by the UN General Assembly on 19 September 1966. [10] ICCPR Art 7: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.” [11] HCAL 77/2008 (5 May 2009) §§120-128. [12] [2008] 4 HKLRD 752. [13] [2011] 1 HKLRD 359. [14] Ghulam Rbani v Secretary for Justice, CACV 267/2011. [15] At §§54 and 70. [16] At §§64-67. [17] As Fok JA then was. [18] [2008] 3 HKLRD 1 at §§16-24. [19] Yeung Chun Pong v Secretary for Justice (2009) 12 HKCFAR 867 at §§10-12, §§21-25. For a helpful discussion of the distinction see the Report on Double Jeopardy by the Law Reform Commission of Hong Kong (February 2012) Chapter 1. [20] Reyes J at §§71-76. [21] At §§124-148, where the Court of Appeal dealt with the double jeopardy and CIDTP grounds together, those grounds being separately addressed in this judgment. [22] Reyes J at §83-85. [23] Court of Appeal at §§100-117. [24] Court of Appeal at §123. [25] Reyes J at §§56-70. [26] Court of Appeal at §70. [27] United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art 1: “For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” [28] Reyes J at §91. [29] With Mr Hectar Pun and Mr Timothy Parker. [30] Reyes J at §94. [31] In Section J.3 below. [32] Court of Appeal at §137. [33] Court of Appeal at §136 and §146. [34] Originally, reliance had been placed on a purported CIL norm prohibiting refoulement to face a fundamental breach of the right to a fair trial, including double jeopardy; but that was abandoned by Mr Gordon at the hearing. [35] JH Rayner Ltd v Department of Trade and Industry [1990] 2 AC 418 at 476-477 per Lord Templeman and at 500 per Lord Oliver of Aylmerton; R v Lyons [2003] 1 AC 976 at §27; R v McKerr [2004] 1 WLR 807 at §48 per Lord Steyn; In re Hai Ho-tak and Cheng Chun-heung [1994] 2 HKLR 202 at 208. [36] R v Secretary for the Home Department ex parte Brind [1991] 1 AC 696 at 747-748 per Lord Bridge of Harwich and at 761 per Lord Ackner. [37] R v Secretary for the Home Department ex parte Brind [1991] 1 AC 696 at 747-748 per Lord Bridge of Harwich and 760 per Lord Ackner. [38] [1990] 2 AC 418 at 499. Applied in Re Chong Bing Keung (No 2) [2000] 2 HKLRD 571 at 582. [39] R v Lyons [2003] 1 AC 976 at §§27-28. [40] In Section G. [41] Appellant’s Case (“AC”) §§146, 169-170 and 221. [42] AC§63. [43] See Lord Lester of Herne Hill QC, “Thirty Years On: The East African Asians Case Revisited” [2002] PL 52. [44] AC§§64-84 and 101. [45] AC§145. [46] Art 12(1): “Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.” [47] For example, in In re Hai Ho-tak and Cheng Chun-heung [1994] 2 HKLR 202 at 209, Nazareth JA stated: “Historically Hong Kong has been and continues to be subjected to unparalleled immigration pressures. If not rigorously controlled they pose a grave threat to the prosperity and stability of Hong Kong. And specifically in the context of close relatives or family members, the numbers of persons without rights to enter and remain, who have family members in Hong Kong with such rights are very substantial indeed; an estimate of 400,000 in the adjoining provinces of China was mentioned to us.” [48] [1994] 2 HKLR 202. [49] [1998] 1 HKLRD 729. [50] [2011] 4 HKC 151, see §311-312 as to the SCNPC’s role and §371 for the vetting process. [51] These were sections 2(3), 3 and 4 of the pre-existing HKBORO. [52] Decision of 23 February 1997, §4. [53] The words in quotation marks are all taken from AC§172. [54] AC§183-184. [55] AC§§199-201. [56] AC§220. [57] AC§172. [58] JH Rayner Ltd v Department of Trade and Industry [1990] 2 AC 418 at 499. Applied in Re Chong Bing Keung (No 2) [2000] 2 HKLRD 571 at 582. [59] AC§202. [60] [1994] 1 HKLR 312 at 327. [61] [1994] 2 HKLR 202 at 208 on appeal from Wong King-lung. [62] Section F.3.2 above. [63] Adopted at the Twenty Fourth Session of the Standing Committee of the Eighth National People’s Congress on 23 February 1997. [64] “Prima facie” since Article 160 of the Basic Law envisages possible subsequent determinations of incompatibility: “If any laws are later discovered to be in contravention of this Law, they shall be amended or cease to have force in accordance with the procedure prescribed by this Law.” [65] (1999) 2 HKCFAR 4 at 41. [66] (1999) 2 HKCFAR 442 at 455. [67] (2000) 3 HKCFAR 459 at 470. [68] (2001) 4 HKCFAR 251. [69] Article 19(1): “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” [70] By the joint judgment of Li CJ, Chan and Ribeiro PJJ and Sir Anthony Mason NPJ. [71] At p 260. [72] (2002) 5 HKCFAR 480 at §§21-22. [73] Chahal v UK (1996) 23 EHRR 413 at §73. For recent re-iterations see F v United Kingdom [2004] ECHR 723 (Application No 17341/03), 22 June 2004; and Al Husin v Bosnia and Herzegovina [2012] ECHR 232 (Application no 3727/08), 7 February 2012. [74] [2002] 1 WLR 3131 at §31. See also R (Ullah) v Special Adjudicator [2004] 2 AC 323 per Lord Bingham of Cornhill at §6 and per Lord Steyn at §30. [75] In Section G.6. [76] ICCPR Art 4.1: “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.” Art 4.2: “No derogation from articles 6 [right to life], 7 [prohibition of torture and CIDTP], 8 (paragraphs 1 and 2) [prohibition of slavery and servitude], 11 [imprisonment for breach of contract], 15 [no retrospective criminal liability], 16 [right to recognition as a person] and 18 [freedom of thought, etc] may be made under this provision.” (Insertions in square brackets supplied) [77] Although the word “cruel” is not used in ECHR Art 3, to avoid confusion, I have continued to use the abbreviation “CIDTP” in relation to the ECHR even though strictly, the letter “C” should be eliminated. [78] Ireland v the United Kingdom [1978] ECHR 1, Judgment of 18 January 1978, Series A no 25, p 65, §163. [79] (1989) 11 EHRR 439 at §88. See also Chahal v UK (1996) 23 EHRR 413 at §79. [80] [2004] 2 AC 323 at §40. [81] [2000] 2 AC 228 at 252. [82] [2006] 1 AC 396 at §46. [83] (2004) 7 HKCFAR 187 at §66. [84] (1999) 2 HKCFAR 4. [85] At 28. [86] (1999) 2 HKCFAR 4 at 28-29. [87] (2002) 5 HKCFAR 480 at §24. [88] With Professor Malcolm Shaw QC, Mr Anderson Chow SC and Ms Grace Chow. [89] [1999] 1 AC 98 (PC). [90] At p 109. [91] (1999) 2 HKCFAR 4 at 25. [92] [2007] 2 AC 1. [93] See per Lord Hoffmann at §§51-53; per Lord Rodger of Earlsferry at §§57-60, 66-67. [94] With the exception of A (Torture Claimant) v Director of Immigration [2008] 4 HKLRD 752, where section 11 was not raised by the Director. [95] [1998] 1 HKLRD 729. [96] At p 748, per Litton VP for the Court. [97] Of 4 November 1994, §10. [98] BOR Art 15(3): Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. [99] For example: F v United Kingdom (Application No 17341/03) [2004] ECHR 723) 22 June 2004; R (Ullah) v Special Adjudicator [2004] 2 AC 323, especially in Lord Steyn’s speech; Z and T v UK [2006] ECHR 1177. [100] HKBORO section 5; ICCPR Art 4 and ECHR Art 15. [101] Section J.2 of this judgment. [102] (1996) 23 EHRR 413 at §79. [103] [2010] 2 AC 110 at §6. [104] [2006] 1 AC 396 at §55. [105] (1989) 11 EHRR 439 at §86. [106] [2004] 2 AC 323 at §7. [107] At §9. [108] (1989) 11 EHRR 439. [109] At §85. [110] At §86. [111] At §87. [112] At §88. [113] At §88. [114] At §90. [115] At §91. [116] Examples include Chahal v UK (1996) 23 EHRR 413 at §73; F v United Kingdom [2004] ECHR 723; R (Ullah) v Special Adjudicator [2004] 2 AC 323 at §12. [117] [2012] ECHR 232 (Application no 3727/08), 7 February 2012 [118] Bossuyt and Humphrey, Guide to the “Travaux Préparatoires´of the ICCPR, 1987, pp 316-317 (Summary, Third Committee, 14th Session 1959); UNGA, Third Committee, 14th Session, 20 November 1959, A/C.3/SR 963 §3; [119] Communication No 204/1986, AP v Italy, §7.3; Communication No 692/1996, ARJ v Australia,§§ 4.11 and 6.4 [120] [2005] 3 HKC 447 at §29. [121] Yeung Chun Pong v Secretary for Justice (2006) 9 HKCFAR 836 at 849. [122] Referred to in Section C.2 above. [123] [2006] 1 AC 396 at §§53-55. [124] Soering v United Kingdom (1989) 11 EHRR 439 at §91. [125] R (Ullah) v Special Adjudicator [2004] 2 AC 323 at §24. [126] [2012] ECHR 232 (Application no 3727/08), 7 February 2012 at §50. [127] At §51. [128] This was an error as the Nigerian law prescribed 5 years imprisonment as the maximum and not the minimum sentence. [129] Reyes J at §108. [130] Reyes J at §110. [131] Reyes J at §§111 and 118. [132] Court of Appeal at §85. [133] (2002) 5 HKCFAR 356. [134] At §131. | ||||||||||||||||||||||||
Cases cited in this judgment
Other judgments that cite this case