Re Meng Ching Hai

Case No.CACV 17/1990

Court

Court of Appeal

Date02 May 1990

Judge—

Case Document

100%

CACV000017/1990

IN THE COURT OF APPEAL	1990, No. 17
	(Civil)

BETWEEN

IN THE MATTER OF MENG CHING HAI

and

IN THE MATTER OF an application for a Writ of Habeas Corpus ad Subjiciendum

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Coram: Sir Derek Cons, V. P., Kempster, J. A. & Mortimer, J.

Date of hearing: 2 May 1990

Date of delivery of judgment: 2 May 1990

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JUDGMENT

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Sir Derek Cons, V. P.:

1. This is a purported appeal from the order of Wong, J. given on the 31st January of this year, whereby he discharged a writ of habeas corpus. It may be appropriate to set out very briefly the facts of the situation.

2. On the 16th July of last year the Applicant arrived in this jurisdiction from Singapore using a Singaporean passport which was subsequently found to be forged. The discovery was made on the 24th of the same month when he attempted to return to Singapore. He was arrested and in due course charged with (1) forging a travel document and (2) making a false representation to an immigration officer. To those charges he pleaded guilty on the 5th September, being sentenced to nine months' imprisonment on each, the sentences to run concurrently.

3. On the 28th November the Governor in Council, being satisfied that Taiwan would accept the return of the Applicant - Taiwan being the country of which the Applicant was apparently a resident -, made a deportation order.

4. On the 19th January of this year the Applicant made an affirmation in support of an application for habeas corpus in which he suggested that he would be subject to a prosecution politically motivated in Taiwan should be sent there and further that he was awaiting the outcome of an application for a Tongan passport. It would seem from an affirmation filed by a Senior Immigration Officer that by that date the application had already been rejected by the Tongan authorities. The same day, the 19th January, Ryan, J., ordered the writ to issue, returnable on the 30th January before Sears, J.

5. On the 22nd January the Applicant completed his prison sentence, was released from prison and has since then been detained in the Victoria Detention Centre.

6. The proceedings came on the 30th January, not before Sears, J., but before Wong, J. The Applicant was represented by Mr. Eddis, who appears for him today; the Crown by Miss Hartstein, who also appears today. I quote now from the judge's notes of the initial exchanges:

"	Mr. Eddis	:	The first matter is for the writ to be read.
	Miss Hartstein	:	There is no writ, no writ served on me. I have prepared an affirmation which has not been filed. I undertake to file it.
	Mr. Eddis	:	I undertake to file the writ. We have no objection to the affirmation being filed late. Liberty of the subject would overtake any other business.
	Miss Hartstein	:	I am anxious that the matter be dealt with as expeditiously as possible."

The judge deferred to her anxieties and heard submissions from counsel, reserved his conclusion to the next morning when he discharged the writ.

7. For my part I am unable to comprehend what he thought he was dealing with on the 30th January. The duty of a judge in habeas corpus proceedings - and I quote for convenience from the Supreme Court Practice, 1988 note 54/7/2, is "to examine by affidavit evidence the truth of the facts alleged in the return". But the judge had no return; indeed the writ was not issued until the following day. He had nothing to inquire into.

8. Miss Hartstein, in a valiant attempt to keep the proceedings alive, has suggested that this was merely a procedural matter which could be cured. In my view it is not. It is a substantive matter which goes to the very jurisdiction of the judge. As I see it, the judge's decision on the 31st was a nullity, leaving no scope for a valid appeal.

9. With every respect to the judge and counsel it is unfortunate that they misapprehended the situation. Now three months have elapsed. The matter should have been disposed of long ago, being one which concerns the liberty of the subject. However I see no alternative save to remit the proceedings to the High Court to fix a date for a return to the writ, which should be as soon as possible. With the consent of the parties it could even be today. The judge will then inquire into the validity of the return.

Kempster, J. A.:

10. I agree, and counsel having suggested that we are endowed with virtually infinite powers to do justice, point out that the Court of Appeal is the creature of statute and the parameters of its jurisdiction are defined in Section 13 of the Supreme Court Ordinance, Chapter 4.

Mortimer, J. :

11. I agree.

(Sir Derek Cons)	(M.E.I. Kempster)	(J.B. Mortimer)
Vice President	Justice of Appeal	Judge of the High Court

Representation:

Francis Eddis, Q.C. & P. Nguyen (M/s. So & Co.) for the Applicant

Miss Victoria Hartstein, Crown Prosecutor for the Respondent