Ng Yuen-shiu v. Attorney General
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CACV000188/1980
----------------- Coram: McMullin, V.-P., Li, J.A. & Baber, J. Date of Judgment: 13th May, 1981 ----------------- JUDGMENT ----------------- McMullin, V. -P. : 1. The appellant was born in China but was taken to Macau by his parents in 1951 when he was only three years of age. In 1967 he entered Hong Kong illegally and thereafter worked in various garment factories having completed a course of apprenticeship in the repair of sewing machines. 2. He first came to the attention of the authorities in 1976 when he applied for an identity card. However, instead of achieving lawful status as a citizen he was removed to Macau under a removal order signed by the Governor in March of that year. One month later he returned once more to Hong Kong illegally. Another four years went past without his being detected by which time he had, by his own account, prospered to the extent that he had become co-owner of the Kam Shing Garment Factory with the registered proprietor, Mr. KWONG Chi-pang. 3. Following a change in the law it became necessary for all Hong Kong residents to carry proof of identity. The Immigration (Amendment) (No. 2) Ordinance 1980 also prohibited the employment of illegal immigrants. In the same month on the 23rd of October the government announced the end of what had been popularly known as the "reached base" policy whereby immigrants from China would not be repatriated if they managed to reach the urban areas. This customary amnesty had never been granted to immigrants from any other areas, including Macau. Televised announcements proclaiming the change in practice were broadcast between the 24th and 26th of October. 4. A deputation of persons who had entered Hong Kong illegally from Macau went to Government House on the 28th of October and submitted a petition there. A statement of the Government's policy in the form of questions and answers was read to them by Mr. LAM Yan-kwong, an Assistant Principal Immigration Officer. It is not in dispute that the text of this announcement which had been authorised by the Secretary for Security truly represented the policy of the Government in this matter. The questions and answers were as follows:
Mr. Lam also answered some questions put to him at the same time by members of the deputation. He told them that each case would be judged upon its merits and would be investigated before decisions were reached. He stressed however that there had been no general "amnesty". 5. The appellant was not present at Government House and did not hear the pronouncement but on the morning of the 28th of October having read a government appeal in a newspaper, addressed to all illegal immigrants, he went to register with the Immigration Department at the office in the Li Po Chun Chambers on that day. He was told to attend the Immigration Clearance Office at Victoria Barracks on the following morning, the 29th. On the evening of the 28th he saw a television programme concerning the statement which had been made by Mr. Lam to the deputation at Government House. 6. Some question was made at the hearing before the Full Bench as to whether that programme, and certain newspaper reports published about the same time, had accurately reflected what had been read out by Mr. Lam. The Full Bench however took the view that the words actually spoken by Mr. Lam constitute the only governmental representation which may be considered. I am in respectful agreement with that view, and indeed the hearing of the appeal has been conducted throughout upon that basis. It has also been accepted throughout these proceedings that, although not personally present when the policy statement was declared by Mr. Lam, the appellant is to be regarded as one to whom that statement was personally made. 7. After some preliminary questioning at Victoria Barracks on the morning of the 29th of October the appellant was taken to Victoria Immigration Centre in Victoria Prison where he was detained. He was interviewed later on the same day by Mr. KWONG Kam-yuen, an Immigration Officer. The interview consisted of questions put to the appellant and recorded together with the answers given by him in a formal document known as an interview report. 8. He was kept in detention under the powers conferred by section 26(a) of the Immigration Ordinance until the 31st of October when the chief immigration officer submitted an application for a removal order to the Director of Immigration. On the 31st of October Mr. CHEUK Koon-chau, the Acting Chief Immigration Officer, submitted an application for a removal order to the Director of Immigration. The appellant continued to be in detention until liberated upon bail upon the making of the application for the writ of habeas corpus on the 6th of November. 9. In the mean time the Director had made a removal order which was served upon the appellant on the 31st of October. He appealed against this order to the Immigration Tribunal under section 53(a) of the Ordinance. The Tribunal dismissed his appeal without hearing him under the powers conferred by section 53(c). He was notified of this decision of the 3rd of November. It is provided in section 53(d) that this decision of the Tribunal is final. The Tribunal, however, in dealing with the appeal is confined to the consideration solely of the question whether the appellant has the right under section 8 of the Ordinance to land in Hong Kong and whether at the time of making of the removal order he had the permission of the Director to remain. 10. At the hearing of the application for the writ the appellant was permitted to apply under Order 53 for judicial review. The applications included an application for an order of certiorari to quash the order of removal dated 31st of October and also to quash the order for removal which had been made by the Governor in 1976. It included also an application to quash the decision of the Appeal Tribunal and an application for an order of prohibition to restrain the Director from executing the removal order of the 31st of October. 11. Before the Full Bench counsel for the appellant sought to argue firstly that execution of the order should be prohibited on the ground that the appellant was indeed a person with a right to land in Hong Kong. This required him to contest the validity of the decision in the Attorney General v. CHEUNG Kam-ping(1) a decision of the Court of Appeal of this territory. 12. That case was concerned with the question whether an illegal immigrant who had entered the Colony unlawfully and remained unlawfully could nevertheless claim to be a Chinese resident with a right to land in Hong Kong under section 8(1) of the Immigration Ordinance by virtue of his having been "ordinarily resident" in Hong Kong for a period of seven years. Such a person would, under the law, have a right to remain in Hong Kong. 13. The appellate court held that "ordinarily resident" meant "lawfully ordinarily resident" and rejected an argument that lawful residential status had been achieved by virtue of residence for seven years undetected, although initially unlawful, on the ground that the immigrant could no longer be prosecuted for an offence under section 38(1) of the Ordinance because of the elapsing of the limitation period in section 46(2) thereof. 14. At the hearing of the present case before the Full Bench counsel for the appellant sought to persuade the court that it was not obliged to follow the decision in CHEUNG Kam-ping but the court did not agree and he was so advised in the course of the argument and thus did not further develop his contention that the appellant had acquired a right to residence in Hong Kong. The remainder of the argument before the Full Bench concerned the matter with which we in this court have been primarily concerned on the hearing of the appeal viz. : whether the orders sought ought to be granted because of a failure on the part of the Director of Immigration to observe the rules of natural justice in making his removal order. 15. Before this court however Mr. Bernacchi for the appellant has renewed both of these contentions. The Court of Appeal in CHEUNG Kam-ping included two members of the present court, myself and Li, J.A. Although he made no point of the matter, counsel might well be forgiven for believing that his argument to persuade us that the court had erred in its previous decision was favoured by the fact that, as it happens, the two members of the present court who sat then came to differing opinions, the decision being a majority decision. Nevertheless, all members of the present court were satisfied that the decision reached on the previous occasion by all three judges could by no means be said to have been arrived at per inouriam; nor were we prepared to accept the alternative proposition advanced by Mr. Bernacchi that, even if not per incuriam, the court was entitled to review its previous decision since the liberty of the subject was involved and to overrule it if, as presently constituted, it came to the conclusion that that decision was wrong. We indicated that the reasons for so holding would be given in fuller measure when we came to consider the appeal at large and to this question - touching upon the principles of stare decisis - I will return in the concluding part of this judgment. 16. The greater part of the argument upon the appeal was therefore concerned with the question of the principles of natural justice and whether they could be said to apply to the circumstances with which the Director of Immigration was dealing. 17. Sir Denys Roberts, C. J. and Rhind, J. the judges of the Full Bench, were in no doubt that the announcement made by Mr. Lam at Government House constituted an undertaking emanating from the highest Immigration Authorities to all illegal immigrants in the position of the appellant that (a) they would not be arrested while the promised interviews were proceeding; and (b) each individual case would be heard upon its merits. They were also satisfied that the first of these undertakings had been broken. This they found could have no effect in law of vitiating the removal order since, however shabby the treatment accorded to the appellant and however justified his sense of grievance as a result of it, the arrest and detention, even if they were illegal (and the court said they were not), could have no direct relation to the questions to be decided by the Director in considering whether or not to make the order. With respect, this seems to be entirely right and Mr. Bernacchi does not now rely upon this as constituting in itself a diriment impediment in the way of the order. This was enlisted, however, as a potent indication of the peremptory and high-handed treatment of the appellant by the Authorities which ended in a failure to accord to him the hearing upon the merits which he had been promised. 18. This latter point involves the substance of the case viz.: the question whether the Director was under a duty to act fairly, a phrase which in the most recent authorities has tended to oust, at least in relation to acts of a purely administrative or executive and non-judicial nature, the more traditional concept of "natural justice". 19. The Full Bench concluded that there was no such obligation upon the Director in this case. But before I come to consider the argument in that regard it is convenient to note that the Full Bench, for completeness, did consider the question of the way in which the interviews had been conducted and concluded that the cases of these immigrants, including that of the appellant, had been heard upon their merits. 20. However, on the material before the court, which included affidavit evidence from the appellant, the Full Bench concluded that he had not been accorded a sufficient opportunity for advancing "humanitarian" reasons why the order should not be made against him. The interview had followed the lines indicated by the interview report which allows for various questions to be put and which contains a series of "boxes" to be ticked by the interviewer in accordance with the answers given. It was accepted that the interviewer had not specifically invited the appellant to advance any humanitarian reasons which might affect the Director's decision although the report form allocates a particular box to that query. The court accepted the appellant's evidence that he had not been allowed to do more than answer these specific questions. In the result, it was said, there had been, to this extent, a failure to "act fairly" on the part of the Director and while refusing the orders sought the Full Bench suggested that the Director might be disposed to consider this aspect of the case before the removal order was executed. 21. Despite an appearance of cnoflict between these findings I think they are to be interpreted as meaning that the appellant did not receive that full measure of a fair hearing which would constitute "fair play in action" and that the hearing "on the merits" which the Full Bench found had been accorded had nevertheless not fully complied with the duty to act fairly. It should be noted that this is the narrow factual base upon which the appeal stands. It is not on one footing with those cases in which the complaint was of a total want of any hearing prior to the carrying out of the executive or administrative act complained of. The respondent's notice in the present case seeks to have the decision of the Full Bench affirmed on the ground that the appellant was accorded such full measure of natural justice as the circumstances of his case demanded. Mr. Barnacchi, however, maintains that there may have been many aspects of his situation which might have had a strong humanitarian appeal had the appellant been given an opportunity of exposing them to the investigating officer. In effect, he maintains, the appellant was not given a proper hearing at all. The Full Bench while expressing no opinion as to the possible existence of any such humanitarian factors clearly supports counsel's contention that the appellant was deprived of the opportunity of advancing them if they existed. I turn now to the principal point in the appeal. Was there a duty to act fairly? 22. A very large number of cases has been opened to us. They include most of those names which have become familiar to the courts in recent years when any question relating to the nature and application of natural justice has come up for discussion. 23. The Full Bench set off upon its inquiry from the standpoint of the durable ground rules established by Lord UpJohn in Durayappah v. Fernando(2)he says that there are three matters which must always be considered in deciding whether the principles of natural justice are to be applied. He says:
No question is made of this statutory right for the Director to remove illegal immigrants and it is not suggested that the order of removal, regarded as a statutory sanction, may not be a severe interference with the interests of the immigrant. The court found however that the appellant as an alien without a right to be in Hong Kong was not entitled to the procedural protection implied in the notion of natural justice, or the duty to act fairly. 24. They relied in particular upon R. v. Brixton Prison Governor, ex parte soble(3)and Schmidt v. Secretary of State, Home Affairs (C.A.)(4)and Salemi v. Minister for Immigration and Ethnic Affairs (No. 2)(5), as compelling recent authority against any right of a restricted class of persons, including aliens, to be accorded such procedural protection. Needless to say the Full Bench was not holding - nor has it been suggested in argument before us - that aliens possess no rights under the law. What these cases were said to establish was that the immigrant's status as an alien with no right to be in or remain in the territory in itself precluded any argument that he had a right to be heard before being excluded therefrom. 25. Mr. Bernacchi points out that these cases, as one might expect in this area of the law, afford support which is less than wholly unequivocal for any absolute and general rule that aliens need not be heard. He points out that Soblen and Schmidt, and the older case of Venicoff (Leman Street Police Station; ex parte Venicoff)(6)which was also relied upon in this connection, are all cases in which, firstly, deportation proceedings were not in issue and, secondly, were concerned with persons who were thought to be undesirable aliens either because their activities were contrary to public order or else adverse to national security. 26. Dealing with the growing inclination of courts to require decision makers to "act fairly" in relation to affording a hearing to persons likely to be affected by administrative or executive acts Professor De Smith (Judicial Review of Administrative Action) puts the principle upon which the Crown relied in the present case in the following somewhat guarded terms: (page 178 4th Edition)
The footnote to this part of the text refers, amongst other cases, to Soblen, Salemi, Schmidt and Venicoff. Even thus stated it may be said that the principle is somewhat called in question by obiter dicta of two eminent judges involved in two of the cases which are said most strongly to support it. This, in Soblen Lord Denning while holding that deportation formed an exception to the tenor of decisions which for nearly a hundred years had established that no person should be deprived of liberty or property without a hearing nevertheless went on to say (at page 298):
Again in Schmidt Lord Widgery while agreeing with the other judges, including the Master of the Rolls, in the opinion that the scientologist students, being aliens without any licence or right to remain in the United Kingdom, had no right to be heard on an application by them to the Home Secretary for an extension to permits for a limited stay, nevertheless observed (page 911):
I do not think Req. v. Board of Visitors of Hull Prison(7)is of any assistance to counsel in this regard. The House of Lords in that case, reversing the decision of the Divisional Court, held that the decision of a board of visitors meting out punishments to prisoners who had taken part in a riot in the prison was subject to judicial review by way of certiorari. The basis of the decision was that the visitors were carrying out what was substantially a judicial function. No question was raised or decided in that case as to whether, upon any such hearing by the board of visitors, there was a right on the part of the prisoners to be heard or represented before the punishments were handed down. 27. There is perhaps more to be said for counsel's point arising from the case of Req. v. Secretary of State for Home Affairs ex parte Hosenball(8)in which the Court of Appeal held that the appellant, against whom the Home Secretary had made a deportation order on the ground that it would be conducive to the public good, was not entitled to be supplied with particulars of the allegations which had prompted the making of the order. It was held that where national security was involved the ordinary principles of natural justice were modified for the protection of the realm. Hosenball was an alien who was being excluded from the realm on grounds of national security based upon confidential information relating to what the Home Secretary regarded as journalists activities detrimental to the good of the state. All the judgments stressed the need for confidentiality in such matters and nowhere in the judgments do we find any reference to any more general exclusionary rule based simply upon the appellant's status as an alien. 28. Counsel resorts to the decision of Lord Denning, M.R. in Schmidt for another purpose. The Full Bench had no difficulty in distinguishing the cases of Re H.K. (An Infant)(9) and A.G. v. Ryan(10)from the present case because in each of those cases peremptory executive action denying a full right of hearing to a person (in the one case seeking admission to the U.K. and in the other seeking citizenship of the Bahamas) was reproved on the ground that the applicant in each case had, under the law, a right to what he sought provided he could show that he came within the terms of the law. To my mind that is a clear distinction. The status of the present appellant is not even that of a bare alien. He has already been refused leave to remain in Hong Kong. He is not a Chinese resident. He stands before the court as one who at best has a hope or expectation of attracting the sympathetic consideration of the Director who has a discretion under section 13 of the Ordinance to authorize him to remain subject to such conditions of stay as the Director sees fit to impose. 29. It is however upon this expectation that Mr. Bernacchi primarily relies. He has support once more from the judgment of Lord Denning. M.R. in Schmidt. It will be recalled that what was under consideration in that case was the application by persons who had had a permit to stay in the United Kingdom to have such permits extended after they had elapsed. The court found that they had no right to a hearing before the decision to refuse such extension was made. But, looking at the matter more generally, the Master of the Rolls, said: (page 17)
Widgery, L.J. in the same case seems to support this view of the matter. 30. This notion of a legitimate expectation was critically examined by the Australian High Court in Salemi. Barrwick C.J. took the line which Mr. Barlow urges upon us in the present case viz.: that courts of law are concerned with rights in the legal sense and must have nothing to do with the enforcement of moral suasions. 31. In Salemi a person who was a prohibited immigrant, and therefore an alien without a right to be in the territory, sought to take advantage of an amnesty declared by the relevant governmental authorities for the purpose of legitimating the presence in Australia of just such persons as he. It was assumed at the hearing of the case that he did conform with all the requirements stated in the published amnesty documents and was therefore a person who on the face of it was entitled to receive legitimation of status. This was nevertheless refused and he thereupon brought proceedings in the High Court seeking declarations and an injunction to prevent his deportation from Australia. The bench of six judges was evenly divided on the issue but under the Australian procedural arrangements the vote of the Chief Justice counts as two and the claim of the plaintiff was dismissed by a majority which was composed of the Chief Justice and two of his fellow judges. The majority could find nothing in the relevant legislation - the Migration Act of 1958 - to support the idea that such an alien had a right to the protection of the rules of natural justice. 32. For the plaintiff it was argued that the amnesty had given him - in accordance with the prescription of Schmidt and the Secretary of State for Home Affairs ex parte Hosenball - a "legitimate expectation" of being allowed indefinitely to stay in Australia. At page 7 the Chief Justice says:
It is to be noted that the legitimate expectation emerging from Schmidt and deployed for the plaintiff in Salemi was in each case a legitimate expectation of being allowed to remain. Gibbs, J., who agreed with the Chief Justice, did not say that such a legitimate expectation would not secure a right to be heard but he found that "a prohibited immigrant as such has no legitimate expectation of remaining in Australia". Aickin, J. on this point is content to agree with what had been said by Gibbs. J. 33. Of the dissenting judges, Stephen, J. and Jacobs, J. take the view that such a legitimate expectation of being allowed to remain could found a right to be heard. 34. On the facts of the present case I cannot see that the appellant had any such "legitimate expectation" of being allowed to remain at all. There was in his case no question of a permit which had been revoked before its due expiry date nor was he made the subject of an offer such as affected the prohibited immigrants in Salemi and which in the plainest terms excited a hope, one would think amounting to a certainty, that, provided the prescriptions detailed in the official statements were fulfilled, indefinite stay would be granted. So far as that aspect of the matter is concerned the appellant is as little covered by Schmidt and Salemi as he is by in Re H.K. (An Infant) and A.G. v. Ryan. 35. That is, however, not the end of the matter. Mr. Bernacchi falls back upon what seems to me to be firmer ground. What he says is that even if the appellant had no legitimate expectation of being allowed to remain in Hong Kong he had at least the legitimate expectation that the undertaking given to him by the authorities that his case would be heard upon the merits would be honoured. Here we come to the case which seems to be most directly in point. 36. In R. v. Liverpool Corporation ex parte Liverpool Taxi-Fleet Operations' Association(11). The local authority had given an express undertaking to members of the association that the existing number of taxi licences would not be increased without their being given an opportunity to make representations before the police was changed. The undertaking was broken and, without hearing from the association, the number of licences was increased by fifty. The association applied to the Divisional Court for orders of prohibition mandamus and certiorari against the Liverpool Corporation. The Divisional Court refused the application but on appeal it was held that the association was entitled to the orders which they sought although, in the event, only prohibition was granted. The court held that the undertaking was compatible with the corporation's statutory duty and therefore the corporation must honour it. 37. Professor De Smith contrasts this case with the decision in Salemi which he sees as in conflict with it. It may be questioned however whether the two cases stand upon quite the same footing. Barrwick, C.J. himself in Salemi deals with the Liverpool Taxi case in this way (page 8):
38. Whatever is to be said of that view the Liverpool Taxi case does seem to me to come closest to the circumstances of the present case inasmuch as both cases were concerned with an express undertaking that parties were to be heard. Professor De Smith does indeed regard the case as having something of an exceptional character. At page 181 dealing with the scope of the audi alteram partem rule today he refers to the Liverpool Taxi case as "the one case that is at all suggestive of possible future development in this area . . . " He goes on to say that the peculiarity of its facts makes it difficult to estimate its wider significance. He makes the very tentative but surprising suggestion that the courts might possibly develop it in the direction of recognising the need for procedural safeguards to protect the rights of interested groups and individuals by giving them prior notice and a right to present arguments before decisions even of a legislative nature are made. The courts may well be slow to follow such a bold lead but far short of that, the case itself may surely be considered adequate cover for the proposition that any undertaking of the specific kind with which we are now concerned ought in fairness to be honoured. 39. The Full Bench did refer to the Liverpool Taxi case but only in relation to the broken promise concerning arrest during the investigations and then only in relation to the proposition stated at page 104 of De Smith that
The court relied on the majority decision in Salemi as being in alignment with the decisions in Soblen and Schmidt on the want of any right in an alien to a fair hearing. Nevertheless, having quoted a passage which appears in the judgment of Lord Denning in Selvarajan v. Race Relations Board(12) where the Master of Rolls says that any person subjected to pains or penalties, or in some way adversely affected by an investigation and report, should be told of the case made against him and be given an opportunity of answering it, the learned Chief Justice goes on to say:
It would appear that the Full Bench decision there referred to should properly be entitled LEUNG Pik-kin the name given to the court being presumably a faulty rendering of the Chinese characters. Counsel are agreed that this is in any event a mistaken reference. The sense of the passage which I have quoted is clearly that the Full Bench is not prepared to depart from the ruling of the Court of Appeal in Schmidt. This court is however not bound by that decision although we should be slow to depart from it unless the latest trend of authority in England and elsewhere should draw us towards a more liberal approach to the status of an executive act in such special circumstances as we are now considering. 40. The judgment of Murphy, J. in Salemi is of particular interest inasmuch as he appears to be the only one of the six judges who went so far as to find that the terms of the amnesty, emanating as they did from an authoritative government source, had the effect of altering the status of the plaintiff so that when he approached the court he was not in fact a prohibited immigrant at all. That was the basis of his decision. But having said so he went on to consider the question of the application of natural justice in relation to the power to deport an alien under the relevant section of the Migration Act. At page 48 he says:
Those were, one would think, the passages which attracted the sympathetic attention of the Full Bench in this case. Equally, in the present case the power conferred is a discretionary power. That is plain from the terms of section 19 themselves and there is in addition the discretion, to which I have already referred, under section 13. 41. The fact that what we are dealing with here is a removal order under section 19 and not a deportation order under section 20 has been enlisted by both sides in fortification of the opposing arguments. So far as persons in the position of the present appellant are concerned an order made, as is the present order, under section 19(1)(b)(ii), on the face of it indicates nothing more adverse to his character than that he has committed an offence under section 38 and that he is to be sent out of the territory pursuant to a policy that such illegal immigrants are not to be given shelter within it. A person removed by a deportation order under section 20, however, incurs the additional odium that such orders are only made in respect of persons who have been guilty of one or more of the criminal offences specified in section 2(a) or if, under paragraph (b), they are such as the Governor-in-Council considers advisable to deport for the public good. 42. On the one hand it is said that so severe an interference with the life and property of an immigrant who is otherwise not said to be undesirable should not be undertaken without giving him in fuller measure an opportunity to be heard than should be accorded to one who is already tainted by criminality and clearly of an undesirable character. 43. On the other hand it is said that where a person alleged to be undesirable or criminal in character is being deported under section 20 it is the more desirable that he should be given an opportunity of showing that the opinion thus held of him is false. 44. I see no advantage in endeavouring to resolve these opposed positions and such weight as must be given to the decision in Salemi is not to my mind affected by the consideration that the court in that case was dealing with a deportation order rather than an order of the kind with which we are dealing here. 45. Mr. Barlow asks us not to follow the decision of the Court of Appeal in the Liverpool Taxi case. It is of course not binding upon this court but in addition to that he asks us to say that it is wrongly decided. He discerns in it a dubious endeavour on the part of the Master of the Rolls to extend further still the notion of promissory estoppel from its original seed-bed in the High Trees into an area of administrative action which, counsel would say, affords no fruitful soil for such further development. 46. Against that case he sets the decision of the Court of Appeal in Maritime electric Co. Ltd. v. General Dairies Ltd.(13) and the decision of the Divisional Court in Southend-On-Sea Corporation v. Hodgson (Wickford) Ltd.(14). 47. In the former it was held that the Electric Company was under a statutory duty to collect charges for electricity at the proper statutory rate and that it was not estopped from recovering the sum claimed by it by reason of the fact, relied upon by the respondent company, that the latter had been charged and had paid a sum very much smaller than the statutory sum as a result of a miscalculation wholly attributable to an error on the part of the Electric Company. 48. This decision was applied in the Southend-On-Sea case where the principle was extended to the exercise by a planning authority of a statutory discretion conferred by the Town and Country Planning Act of 1947. The point at issue turned on whether certain premises had formerly been used as a builders' yard. The plaintiffs had acquired the premises and wished to use them for that purpose. If they had been so used formerly there was no need to have any planning permission. The plaintiffs were told by the borough engineer that the premises had so formerly been used and that no planning permission would be needed. In reliance upon that assurance the company went ahead and established the yard for the purpose required. The planning authority then notified the company that evidence had come to light that the premises had formerly not been used as a builders' yard. The authority had power under section 23 of the Act in their discretion to serve an enforcement notice upon the occupier which would compel him to cease operations until planning permission had been achieved. Upon the service of such a notice the plaintiff appealed under the Act to the court of the justices of the area. The court held that the authority was estopped from insisting upon the planning permission but the decision was reversed upon appeal. Lord Parker, C.J. said (page 424):
Although this matter was argued as one of estoppel on behalf of the appellant before the Full Bench Mr. Bernacchi at the hearing of the appeal wished to de-emphasize the estoppel aspect of the matter and asked us to consider the case of his client simply under the rubric of the doctrine of fairness. In his turn he sets against Mr. Barlow's two cases the Court of Appeal decision in Lever Finance v. Westminster L.B.C.(15) where the council was held to be bound by representations made by one of its officers that no further planning permission was needed in respect of certain minor alterations submitted by the plaintiff company in plans already approved by the council. At page 230 Lord Denning, M.R. says as follows:
Wells v. Minister of Housing and Local Government(16) and Re L. (A.C.) (An Infant)(17) are cases which speak in a similar sense. 49. Dealing with the question of the degree to which an administrative body may lawfully fetter its own exercise of discretion Professor De Smith at page 316 says as follows:
The Liverpool Taxi case is once more cited in support of the latter part of that proposition. It may be conceded that where a discretion of the kind reposed in the Director of Immigration is to be exercised the benefit of the public at large is a paramount consideration. But in the curcumstances of this case I do not see that we are compelled to choose between the competing attractions of Lever Finance Ltd. and the Liverpool Taxi cases on the one hand and the Maritime Electric and the Southend-On -Sea cases on the other. 50. If the court were to decide that the appellant had not had a hearing of the kind which he had been promised there could, to my mind, be no question of fettering the Director's discretion by an order which would have the effect that the appellant should now have what he was promised. To say otherwise would be to suggest that the promise made was, as it were, tongue in cheek and that the Director had in mind something curtly formal and inadequate rather than a true inquiry into the individual circumstances of each case upon its merits. We should be very reluctant to attribute anything of that kind to the Director or to his representative who made the pronouncement upon which the appellant now relies. Rather is it to be supposed that the Director was anxious to have a full exposition of all relevant circumstances, including such as might be favourable to the appellant in order that he, the Director, could fairly exercise his discretion. He is not to be presumed to wish to exercise his discretion upon inadequate information or to put more succinctly - unfairly. Looked at in this way the order of the court, provided only that it was itself soundly based on a perception that the Director may have been deprived of relevant and helpful information, would be removing rather than applying a fetter to the due exercise of his discretion by the Director. 51. Where there is an honest desire to act justly, the want of pertinent information is just as much a fetter in this area of human conduct as in any other. In this regard I am happy to adopt what was said by Stephen, J. in the Salemi case the more so because it enlists a further notable authority. Thus at page 34 he says:
If it be necessary to say that this narrower aspect of a legitimate expectation gives rise to a right to be heard - so be it. Understood as a legally enforceable right it may be regarded as one of a somewhat attenuated character, being in a sense but the mirror image of a right which the Director himself would surely wish to exert viz.: the right to insist that he be not impeded in the exercise of his discretion by any demonstrable inadequacy in the information laid before him at his request. Perhaps the better way of putting it would be to say that, taken together, these "rights" invoke the duty of the court to see that justice is manifestly seen to be done. 52. Notwithstanding the note in the White Book at pages 826 and 827 dealing with applications for judicial review, to which Mr. Barlow referred us, I note that in the Liverpool Taxi case where the applications before the court were for mandamus certiorari and prohibition the several judges, while not stating that certiorari could not issue, felt that the appropriate order in the circumstances was one of prohibition only. I appreciate that the strict logic of the position I have adopted might to be said to justify the quashing of the order. The same might have been said for the plaintiffs in the Liverpool Taxi case and it may be that the consensus to refuse certiorari in that case was in some sense an acknowledgment that the right discerned in the plaintiffs was not of a character sufficient to impel the quashing of the council's resolution, although I think it is clear that the Master of the Rolls considered that that course was open to the court. If in the case of subjects the law does not regard such a failure of natural justice as necessarily invalidating the act complained of still less should the court feel bound so to find in the case of an alien. 53. I would allow the appeal and order that prohibition do issue to prevent the execution of the removal order. I do not think that it is either necessary or desirable that we should remove the order into this court to quash it. The writ of habeas corpus was quashed by the Full Bench. I would not propose to reinstate it. The effect of this order therefore is that the appellant is reposed once more in the custody of the Director under the removal order. That order may however not be executed until a further opportunity is given to the defendant of putting all the circumstances of his case before the Director. If the Director should alter his opinion the removal order may simply be cancelled. 54. The result of such further inquiry is no concern of this court. I would like to stress also that nothing which has been said in this judgment must be taken as indicating either that the court has any view as to what the ultimate result in this case must be, or that the Director is to be criticised in any way for making the order as he did. The circumstances of Hong Kong vis-a-vis the Immigration Authorities are too well - known to be reiterated. Working at high pressure and with limited resources of staff in the face of a wellnigh insoluble problem of illegal immigration, involving numbers that are always considerable and occasionally critical, it is not to be wondered at that the processing of individual cases may occasionally fall shout of the very highest standards of full and fair investigation. 55. Enough has been said already both by the Full Bench and by this court to indicate the limited extent to which that can be said to have occurred in the present case. It is because the effect upon the life of this individual long - time (though illegal) resident is so considerable that we feel that this last ounce of "natural justice" should be afforded to him before the final decision is made. It goes without saying that once the appellant has been heard it is entirely within the Director's discretion as to whether he should go or stay. This court is not and cannot be concerned with the weight of any representations which may thus be made but only with the opportunity to put them forward. 56. To this limited extent only I would allow the appeal. That disposes of the question of principal concern. I turn finally to the point which we decided against the appellant at the outset of the argument. CHEUNG Kam - ping: stare decisis? 57. Had Mr. Bernacchi been able to persuade us to reconsider our decision in CHEUNG Kam-ping and had we come to the conclusion that that decision was wrong in law we would have been obliged to find that his client was a Chinese citizen with a right to land in Hong Kong and to grant all the relief which he seeks. 58. Arguing for a reconsideration of the case counsel relied upon R.v. Taylor(18) and R. v. Gould(19). They are both decisions of the Court of Appeal Criminal Division. In the latter, applying the decision in R. v. Taylor, Diplock, L.J. pointed out that the English courts do not apply the doctrine of stare decisis with the same rigidity in the criminal as in the civil jurisdiction. This was confirmed by Widgery, L.J. (as he then was) in R. v. Newsome(20)where he expressly approved what had been said by Diplock, L.J. in Gould. 59. The more relaxed practice of the criminal courts is, as counsel points out, related to the need to preserve the liberty of the subject when that has been infringed by the application of a decision which is perceived to have been manifestly in error. Counsel asks us to say that the liberty of the subject is equally in jeopardy in proceedings such as the present even although no criminal charge is actually before the court. 60. Mr. Barlow relied upon Davis v. Johnson(21). In that case the Court of Appeal had been obliged to consider a narrow as against a broad interpretation of certain statutory provision in a case involving a dispute under the Domestic Violence and Matrimonial Proceedings Act 1976. The court by a majority of three out of five members opted for the wider interpretation. In doing so the majority purported to depart from two previous decisions of the court in each of which the narrower interpretation had been applied. The earlier cases were taken before divisions of the court which consisted in each case of three members only. The case went on appeal and the five judges in the House of Lords, opted for the broad interpretation and dismissed the appeal but were unanimously of the opinion that the rule in Young v. Bristol Aeroplane Co.(22) still applied to civil cases in the Court of Appeal. The leading opinion of the House on this point is given in the judgment of Lord Diplock who at page 1137 says:
61. We drew the attention of counsel to the decision of the Privy Council in Attorney General of St. Christopher, Nevis and Anquilla v. Reynolds(23). Mr. Barlow received it with enthusiasm and Mr. Bernacchi sought to distinguish it. 62. The respondent in that case had been detained by an order of the Governor purporting to act under certain emergency powers regulations. The respondent had been held in custody in disagreeable conditions between June the 11th 1967 and August the 10th 1967. In 1968 he brought an action against the Attorney General claiming damages for false imprisonment on the ground that his detention had been unlawful. An adjournment was obtained and the matter slept for some eight years before coming on for trial. Judgment was given for the plaintiff and the Attorney General appealed. In dismissing the appeal the Appellate Court held itself bound by its own decisions in two previous cases dealing with the same regulations. Upon appeal to the Privy Council it was held that the regulations were not, as the Court of Appeal had held, so gravely in collision with the constitution of the territory as to be incapable of being brought into conformity with it. Although allowing the appeal the Board said that the West Indies Appellate Court had been correct in following its own previous decisions. At page 659 Lord Salmon says:
63. Notwithstanding that reservation Lord Salmon went on to consider the judgment of Isaacs, J. who in 1930 in the Australian Agricultural Co. v. Federated Engine-Drivers and Firemen's Association of Australasia(24) had proposed that the Australian Appellate Court could depart from previous decisions on the ground that:
Lord Diplock continues:
He concludes upon the matter a little later (page 660) in the following words:
64. These are strong expressions but in deference to a contrary opinion I think I ought to refer to Dataprep (H.K.) Ltd. v. KUO Chi-yung, Peter(25) a case to which counsel did not refer. In that case Huggins, J. (as he then was) delivered the opinion of the Full Court which consisted of himself and Pickering, J. He noted that the Full Court in CHENG Pui-wah v. Luen Hop Chi Yip Ltd.(26) had declined to decide whether it was bound by its own previous decisions in civil matters. He grasped the nettle and came firmly to the conclusion that in civil matters as in criminal the Full Court was free to depart from previous decisions which it considered to be erroneous. He said (page 397):
65. I do not think that in the circumstances here we should follow the exceptional practice of the English courts in criminal cases. Mr. Bernacchi's assimilation of this to such cases on the basis that the liberty of the subject is involved does not appear to me to be sound. The whole "natural justice" argument in the present case has turned upon the appellant's conceded status as an alien. For the purpose of that argument he is not to be regarded as in any sense a subject of the Crown. We cannot consider counsel's argument as to stare decisis on any other basis for that would be to concede precisely what the argument seeks to establish viz.: that CHEUNG Kam-ping was wrongly decided. 66. There is no doubt that the appellant's liberty has been interfered with by the period of detention pending the execution of the order but that is a very different thing from the interference with the liberty of a subject of the Crown who has been imprisoned under an order of the court in a criminal case when it is perceived that the court, in making the order for his imprisonment, was acting upon a precedent which upon later examination is perceived to have been in error. 67. Of course habeas corpus does apply even in the case of somebody who eventually is shown not to be a subject of the Crown. That will frequently happen in circumstances such as those with which we are concerned in the present case. But the whole purpose of that procedure is to test whether or not the applicant is a subject with a right to remain. If he does not succeed he will not be further detained. He will be set at liberty though not within the territory in which he aspires to be a resident. Therefore I do not think that the criminal cases are a proper headline for this court in the present case. 68. The alternative argument that CHEUNG Kam-ping was decided per incuriam, within the meaning of the first exception to the rule of stare decisis established in the Bristol Aeroplane case was clearly not tenable and counsel did not persist in it. In this matter I would respectfully adopt what was said by Lord Evershed M.R. in Morelle, Ltd. v. Wakeling(27):
69. We will shortly have three divisions of the Court of Appeal sitting simultaneously in this territory. As Lord Diplock noted in Davis v. Johnson the need for certainty in the law as propounded at the appellate level "grows ever greater with increasing membership and the number of three judge divisions in which it sits . . . " One must balance against that consideration the factors adverted to by Hugging, J. in the Dataprep case, and also the reservation expressed by Lord Diplock in the Davis case where he makes "reasonable means of access" to the superior appellate court a desideratum in maintaining the strict rule in relation to the intermediate appellate court. Appeals to the Privy Council are more frequent than they used to be but they are both time consuming and costly. Moreover, we lack any provision in our law such as permits "leapfrog" appeals to the House of Lords from High Court decisions by virtue of the Administration of Justice Act 1969 in England. 70. The position, both as to authority and as to the present constitution of the appellate court in Hong Kong has altered very considerably since the decision in Dataprep. I would think that in view of the very strong expressions used by the House of Lords in Davis and by the Privy Council in Reynolds, and notwithstanding that in the latter case the opinion is said only to be persuasive, the time has come when we should, in civil matters, consider that we are bound by our own previous decisions on points of law subject to the three exceptions stated in Bristol Aeroplane Co. Ltd. v. Young. Li, J. A. :- 71. This is an appeal from the Full Bench decision to quash the writ of habeas corpus and refuse the issues of orders of certiorari and prohibition. The background of the case are clearly set out in the Judgment of the Full Bench. It is not necessary to go into details. 72. The appellant is an illegal immigrant from Macau. He had been removed once from Hong Kong to Macau in March, 1976. He came secretly back to Hong Kong within a month. As a result of a change of policy regarding illegal immigrants from China and an appeal to all illegal immigrants to go to the Immigration Department, certain illegal immigrants from Macau petitioned His Excellency at Government House in the evening of the 28th October, 1980. The proper authority gave the following assurances in the form of questions and answers:-
73. Prior to this the appellant had, on the morning of 28th October, presented himself to the Immigration Department for permission to remain in Hong Kong. He was told to report to Victoria Barracks the following day. He did so and was arrested, detained and later interviewed. He was asked questions. He was not given a chance to make his presentation. Then a removal order was made against him. Hence this application to the Full Bench for the writ and the orders. 74. In its Judgment, Full Bench found as a fact that:-
75. On questions of law the Full Bench found that the Director in exercising his discretion must act fairly and that the Court had jurisdiction to review his decision if he failed to do so. It also found that the appellant, as an alien illegal immigrant had no right to be treated fairly concerning leave to remain in Hong Kong. In that event the appellant had no right to insist on being heard. While expressing a doubt whether the principle of estoppel apply to erroneous assurances given by servants of the Crown the Full Bench was content to adopt a passage in Professor de Smith's Judicial Review of Administrative Action at p.104 and concluded that a broken undertaking by the Government would not render the arrest of the appellant illegal or vitiate the removal order of the 29th October, 1980 even though the appellant was put in peril by virtue of such an undertaking. 76. For the aforesaid reasons the Full Bench quashed the writ of habeas corpus and refused the orders of certiorari and prohibition. Hence this appeal. 77. Apart from the respondent's Notice of Appeal to the effect that in all the circumstances of the case the opportunity to be heard afforded to the appellant by the Director of Immigration's officers was sufficient to satisfy the requirements of the rules of natural justice and the doctrine of fairness had those requirements been applicable in this case; and the 5th ground of appeal filed by the appellant to the effect that the Director had not honoured his undertakings, there is no other dispute in this appeal as to the findings of facts by the Full Bench. Having found that the appellant was permitted only to answer set questions and was not allowed to present his own case on humanitarian grounds the Full Bench said at p.120 of the transcript as follows:-
78. This, in my mind, appears to be in conflict with its earlier conclusion at p.118 of the transcript in which it said:-
79. Having regard to the findings I am unable to accept the Full Bench's conclusion at p.118. I am of the opinion that the Director could not have been said to have considered the appellant's case on its merits since by the very acts of his own officers he had deprived himself the opportunity to consider a very vital factor of the merits in the appellant's application to remain. No illegal immigrant has any merit in law to claim a right to remain in Hong Kong. The only merit, if any, is on humanitarian grounds. How could the Director be said to have considered the merits if his officers failed to allow the appellant to present his own case? They also arrested the appellant thereby depriving him the chance to gather material for that purpose. For these reasons I am of the opinion that the Director had not acted reasonably and fairly towards the appellant. He issued the removal order, in the circumstances, in breach of the undertakings or assurances of the proper authority. Such conclusion of mine should not be misunderstood as criticism of the Director or his officers or as any reflection of their bona fides. In this regard I agree in full with My Lord the Vice President's observations. I appreciate only too well how hard pressed they were at the material time in coping with a mammoth task. 80. The gravaman of the appellant's case then hinges on one point only and that is whether, as an alien, he is entitled to be treated with fairness. On this point, Mr. Bernacchi and Mr. Barlow agree that in exercise of an administrative discretion there are different degrees of fairness. Mr. Bernacchi asserts, however, that in the circumstances of the present case, at least the appellant has a right to be heard. He founds this right to be heard on two grounds.
81. I do not feel that there is any substance on ground (a). The appellant is not only an alien but also an illegal immigrant who had been removed once from Hong Kong in 1976 and came back again illegally within a month. How can it be said that he sincerely expects that he has a right to remain in Hong Kong? All he has is, despite his lack of legal right, a hope that the Director might exercise his discretion in his (the appellant's) favour on humanitarian grounds. Mr. Bernacchi contends that the appellant has a right to be heard provided he had a legitimate expectation of some kind which need not be a legal right. Despite the grand tour of judicial approaches to this question through which Mr. Bernacchi has conducted us I do not find the cases he cites support his contention. In the case of Schmidt v. The Secretary of State for Home Affairs (1969) 2 Ch. D. 149, Lord Denning said at p.170:-
82. It is abundantly clear that what Lord Denning meant was legitimate expectation of some legal right. 83. As to the other cases it was held that an alien had the right to be heard only because the alien would have a right of entry or to remain in the host country without invoking any discretion to be exercised by the proper authorities provided that he (the alien) could satisfy the authority that he possess certain qualifications. This is made clear in the case of In re H.K. (An Infant). The decision in Salemi v. Minister for Immigration and Ethnic Affairs (1977) 14 A.L.R. 1 is founded on interpretation of Australian Statutes. Without going into the intricate reasons of the various judgments the majority decision appears to be that even if an applicant could prove his qualification he still had no right to be heard. If there is any conflict between this Australian case with the English authorities. I will follow the clear cut principle of the English authorities. For this reason I am of the opinion that the appellant had no right to be heard unless he has a legitimate expectation of some legal right of which the appellant had none. 84. The only point to be considered is the second proposition namely, the Government's undertakings. There is no doubt that the announcement at Government House assured the appellant and his fellow illegal immigrants from Macau that they would not be arrested pending an interview and that their cases were to be considered on their merits. This, in my opinion, entails an opportunity to be heard. The Director was in breach of both undertakings. The question is, does such assurance bind the Director. I am of the opinion that it does. The passage of de Smith's Judicial Review of Administrative Action at p.104 reads:-
When cited in isolation this passage does not give the full picture. At p.103 of the same work the author wrote:-
85. This is supported by Lord Denning's judgment in the case of Regina v. Liverpool Corporation, Ex Parte Liverpool Taxi Fleet Operators' Association 1972 2 Q.B. 299. At page 308 Lord Denning said:-
86. In another case in Lever Finance Ltd., v. Westminster (City) London Borough Council (1971) 1 Q.B. 222, Lord Denning said at p.230:-
87. Applying such principles to the instant appeal it appears that the announcement at Government House was an assurance made after serious consideration and not erroneously. It cannot be said that the Director's discretion to be exercised by virtue of the provisions in the Immigration Ordinance would be fettered in any way by honouring such assurance. It was a procedural matter which was within the power of the proper authority to prescribe and it did so prescribed. It gave the appellant the assurance that his case would be considered on its merits and that he would not be arrested pending interview. The Full Bench had found that both such assurances had been broken. On this question of law I am of the opinion that such an undertaking would be binding upon the Director and such assurances gave the appellant an expectation that he would be heard. Even if the appellant, as an alien, had no right to be heard such an assurance granted him that right. An alien must have certain basic rights e.g. a right to rely on the assurance of his host country. In order to honour his assurance or undertaking the Director will not be hindered in the performance of his public duty under the Immigration Ordinance. The circumstances of the present case are very similar to the circumstances of the case of Liverpool Corporation and Lever Finance Ltd. 88. What then is the end result of this? It means that the removal order was made in breach of an undertaking without granting the appellant an opportunity to be heard. In this way the Director's decision may be reviewed as being unreasonable and therefore unfair. It is not necessary to go into the merits of the argument whether by virtue the binding force of the assurance the arrest of the appellant was illegal. The assurance was not given erroneously. It does not prevent the Director acting in accordance with his statutory duty. This assurance had been broken. The Director in such a way, although acted in good faith, was unreasonable. As such, his decision in issuing the removal order was invalid. The only justification for the appellant's arrest was founded on the validity of the removal order. Once the removal order and the arrest were in breach of an undertaking and are invalid there is no further ground for the detention of the appellant. For these reasons I am of the opinion that the appellant succeeds. The writ of habeas corpus should issue in as much as orders of certiorari and prohibition. 89. As to the question whether this Court should be barred by its own previous decision, I am in full agreement with My Lord the Vice-President.
Baber, J. : 90. I agree with the Vice-President and Li, J.A. that the appellant is somewhat more deserving of a remedy than the Full Bench considered him to be. I agree with the Vice-President that the appeal should be allowed to the extent only that an order of prohibition should issue restraining the Director of Immigration from executing the removal order that he made against the appellant on 31st October 1980 until the appellant has had the opportunity of making within a reasonable time (a week or two should suffice) representations to the Director as to the circumstances of his case. Once this opportunity has been given it will be for the Director to decide the fate of the appellant upon the material then before him. It is not a matter upon which this Court expresses any opinion one way or the other. It is not our business to do so. 91. The appellant was led reasonably to believe that the case of each illegal immigrant from Macau would be decided on its merits. He was not given an adequate opportunity to state what he considered to be the merits of his case. An order of prohibition will in my opinion suffice to correct this shortcoming. It is a pity that he was not expressly asked at his interview on 29th October 1980 "Have you anything to say as to why you should be allowed to remain in Hong Kong?" and his answer recorded. This would have been an adequate opportunity to state his case and had this been done these proceedings would have been unnecessary.
Representation: Mr. B. Bernacchi, Q. C. & Sammy Li (Kwan & Kwan) for appellant Mr. B. Barlow (Legal Department) for respondent (1) Civil Appeal No. 58 of 1980. (2) (1967) 2 A. C. 337 at p. 349. (3) (1963) 2 Q. B. 243. (4) (1969) 2 Ch. 149. (5) (1977) 14 A. L. R. 1. (6) (1920) 3 K. B. 72. (7) (1979) 2 W. L. R. 42. (8) (1977) 1 W. L. R. 766. (9) (1967) 2 Q. B. 617. (10) (1980) 3 W. L. R. 143. (11) (1972) 2 Q. B. 299. (12) (1976) 1 All E. R. 12 at p. 19. (13) (1937) A. C. 610. (14) (1962) 1 Q. B. 416. (15) 1 Q. B. 222. (16) (1967) 1 W. L. R. 1000. (17) (1971) 3 All E. R. 743. (18) (1950) 2 All E. R. 1970. (19) (1968) 1 All E. R. 899. (20) (1970) 2 Q. B. 711 at p. 716. (21) (1978) 1 All E. R. 1132. (22) (1944) L. R. K. B. 718. (23) (1980) A. C. 637. (24) (1913)17 C. L. R. 261. (25) (1974) H. K. L. R. 383. (26) (1964) H. K. L. R. 19. (27) (1978) 1 All E. R. 708 at 718. |
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