IQBAL SHAHID AND OTHERS v. SECRETARY FOR JUSTICE

HCAL 150/2008
HCAL 8/2009

HCAL 150/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 150 OF 2008

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J U D G M E N T

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1. On 30 December 2008 I granted leave to 19 applicants in HCAL150/2008 to judicially review decisions of Mr T H Casewell, Permanent Magistrate, which he had made on 27 November 2008.  The hearing of that review was listed for 18 February 2009.

2.  By notice dated 5 February 2009 the 10 applicants in HCAL8/2009 sought leave to apply to judicially review the same decisions.  I directed that that application be listed for hearing on 18 February prior to the hearing in HCAL150/2008.  The respondent did not object to that application.  I granted leave and heard both applications together.

3.  The decisions which the applicants seek to review were in the following terms:

“(1)   The prosecution of charges under s. 38(1)(b) of the Immigration Ordinance, Cap 115, against the respective applicants was within the prosecution policy and did not amount to an abuse of process and should proceed; and

(2) it is not possible for the applicants to successfully argue that the recognizance entered into by them under s. 36 of the Ordinance amounts to an authority of the Director [of Immigration] to remain in Hong Kong or provide them with a defence to the charges.”

4.  Although contained in two paragraphs, it will be appreciated that there are three distinct decisions which require consideration.

The background

5.  In granting the applicants in HCAL150/2008 leave to bring these proceedings, I drew on their notice of application for the purposes of setting out the background which gave rise to the various prosecutions.  The applicants under HCAL/2009 adopted a similar chronology.  I do not propose to repeat what I said earlier as the magistrate succinctly summarised the background in these terms:

 “ All these cases contain certain common features.  All of the defendants entered Hong Kong illegally.  They were all either arrested by police or surrendered themselves to the Immigration Department.  They have all filed a claim with the Hong Kong sub-office of the United Nations High Commission for Refugees to be recognized as a refugee, or a claim under the Convention against Torture and other Cruel and Degrading Treatment or Punishment with the HKSAR government.  Some have applied under both.  By reason of these applications, the defendants fall within the remit of the prosecution policy towards refugees, asylum seekers and torture claimants.

The policy provides that an asylum seeker or torture claimant will not be prosecuted in relation to the unlawful entry into Hong Kong, until after the determination of their refugee and torture claims.  They may still be prosecuted for any other immigration offence committed by him that is unrelated to their unlawful entry.

They were all released on a recognizance by the Director of Immigration under section 36(1) of Cap. 115 pending the determination of their refugee and/or torture claims.  The recognizance requires that release is subject to regular reporting condition.  Breach of condition would lead to a forfeiture of the surety to the Hong Kong government.

Now, it is alleged by the prosecution that all the defendants had been found working at places of employment.  The prosecution considers this to be the commission of a further immigration offence, unrelated to the unlawful entry, and has prosecuted them all under section 38(1)(b) of Cap. 115"

The prosecution policy

6.  In 2007 the Department of Justice formulated a "Prosecution Policy towards Refugees, Asylum Seekers and Torture Claimants” (the Policy) which, it is undisputed, is of applicability to these applicants.  Although obviously formulated earlier, it appears that that policy first saw light of day, in public at least, on 6 March 2007 in the form of a statement read in Shatin Magistracy by a Senior Government Counsel in proceedings cited as HKSAR v Harjit Singh STCC1483/2007.  It is helpful to reproduce portions of that statement.

7.  In explaining why the statement was being made, it was said:

“On 13 February 2007, after the defendant pleaded guilty to a charge of making a false representation to an immigration officer... and admitted the facts, the court enquired why the defendant was not also charged with an offence of unlawful remaining in Hong Kong.  The departmental prosecutor explained that the defendant had sought asylum, and the policy was to await the outcome of the claim before deciding on the appropriateness of any such charge.  The Director of Public Prosecutions has asked me to attend this morning, to elaborate upon that explanation.

2.  The defendant is both an asylum seeker and a torture claimant and his situation requires to be treated accordingly.”

8.  In explaining the rationale behind the policy, the statement read:

“10.   In Prabakar v Secretary for Security [2005] 1 HKLRD 289 the Court of Final Appeal ruled that an independent assessment of torture claims should be made by the HKSARG with high standards of fairness.  Integral to this was that the claimant should be given every reasonable opportunity to establish his claim, the claim must be properly assessed and reasons should be given where the claim is rejected.  In particular, Li CJ, at page 302 lines B to F said:  

43.  The question in this appeal concerns the standards of fairness that must be observed by the Secretary in determining in accordance with the policy the potential deportee’s claim that he would be subjected to torture if returned to the country concerned...

44. Here, the context is the exercise of the power to deport.  The determination of the potential deportee’s torture claim by the Secretary in accordance with the policy is plainly one of momentous importance to the individual concerned...

…

11.    Although the judgment of the Court of Final Appeal related to torture claims to which the Torture Convention applies, the Department of Justice is satisfied that like principles apply to claims for asylum; and that the same ‘high standards of fairness’ must also be applied to the processing of any such claim.

Conclusion

12.   If a person who enters Hong Kong without adherence to proper procedures is an asylum seeker or a torture claimant, this, of itself, will not result in a prosecution.  The claim that is made may be legitimate, and it would not be just for the Department of Justice to prejudge the bona fides of a claim for asylum or of torture which is subject to processing by, respectively, the UNHCR or the HKSARG.  The making of such a claim is not an offence, although if the claim is, ultimately, adjudged by the UNHCR to be other than legitimate, a prosecution for entering Hong Kong illegally or overstaying will fall for consideration.  The high standard of fairness, as described by the Court of Final appeal in Prabaker, must, throughout, be scrupulously observed and those responsible for public prosecutions must not jump the gun.  If, however, as in this case, the claimant is considered to have committed an offence which is unconnected to an entry or remaining without permission, or overstaying, a prosecution may be instituted in the ordinary way.

13.   Until such time as the defendant’s asylum and torture claims are resolved, it would not be appropriate to consider prosecuting him for the offence of illegal remaining in Hong Kong.  Any such prosecution, depending on the results of the processing, may be wholly inappropriate..."

9.  On 12 March 2007 the Acting Deputy Director of Public Prosecutions, Mr Cheung Wai-sun, who appears on behalf of the respondent in these proceedings, distributed to "All prosecutions (sic) counsel. All court prosecutors" Legal Circular number 4 of 2007 to which was attached to a document described as "... a paper setting out the prosecution policy for refugees, asylum seekers and torture claimants.", as well as a copy of the statement read in court on 6 March 2007.

10.  The Circular read, in part:

“Basically, an asylum seeker or torture claimant will not be prosecuted for an immigration offence relating to his claim, e.g., landing and remaining without permission, pending a determination by the relevant authorities.  If a charge has been laid, it will be adjourned.  If he commits an offence unrelated to his claim, such as theft or using a false instrument, he will be prosecuted for that offence alone."

11.  The "paper setting out the prosecution policy" attached to that circular read, in its material parts:

“7. The fact that a person is a refugee, asylum seeker or torture claimant will not lead to that person's prosecution or detention in Hong Kong.  Making such claims is not an offence.  If the person is found to have committed an offence in Hong Kong, he may be liable to be prosecuted.  Most of these offences are immigration offences, e.g. entering Hong Kong illegally, overstaying.

8.  The present practice is as follows:

(1) A person who seeks asylum, torture claim or both will not normally be prosecuted for an immigration offence, e.g. entering Hong Kong illegally, overstaying, until their claims and all appeal procedures have been concluded.  If a charge has been laid, the prosecution will apply for an adjournment.

 (2)    Those persons will be prosecuted if they:

(a)   commit a serious immigration offence, e.g. a passport racket

(b)   commit a non-immigration offence, e.g. robbery

(c)   commit an immigration offence which is not related to the claim, e.g. taking up illegal employment.

9.  The above practice has been and will be consistently followed.  We believe that it strikes a balance between protecting the interests of the claimant and the prosecution of crimes ”

Decision 1: Were the prosecutions within the policy?

12.  A prosecution policy neither qualifies nor abrogates any existing legislation nor detracts from a prosecuting authority’s right to appropriately enforce an existing law: it provides a framework within the parameters of which considerations leading to prosecution may be publicised, or an intent of stay or lack of prosecution may be expressed.

13.  The Policy amounts to a clear statement of intention not to prosecute, or not to continue the prosecution, of a person who has landed unlawfully in Hong Kong and remained without the permission of the Director of Immigration (the Director) or who has arrived lawfully but has overstayed, for that entry offence, until such time as his claim that he is an asylum seeker or a torture claimant has been determined.  This approach is explained by the statement dated 6 March 2007 which states, unequivocally, that it is based on considerations of fairness.

14.  There is, however, a reservation contained in the Policy.  That is that prosecution still may result if the person, be he asylum seeker or torture claimant, commits one of the categories of other offences referred to in §8(2) of the Policy. 

15.  There is no suggestion by the respondent that the conduct of any of the applicants fell within either of the categories as set out in §8(2)(a) or (b) of the Policy.

16.  It is not in dispute that each of the present applicants was prosecuted because he was thought to have breached §8(2)(c) of the Policy, it being alleged that he had been in employment at the time of the his arrest: each applicant denies that what he was doing was being done consequent upon employment. That is a question of fact which will require to be determined in each prosecution.

17.  That the alleged employment was the trigger for the prosecution of the entry offence is clear from the face of each charge: the date of commission of the offence said to have been committed by each applicant was not the date of his unlawful entry into Hong Kong but the date of his arrest for apparently having been in employment.   The choice of date in each instance, after the respective applicant had been in Hong Kong for an appreciable period, is contended by the respondent to demonstrate that the applicants are not being charged for the entry offence and, thus, not contrary to the Policy.  However, given that the offence of remaining in Hong Kong without the authority of the Director must be a continuing offence, the selection of that date is, in my view, simply tactical.

18.  Mr Cheung realistically accepted, at the hearing of the leave application in respect of HCAL150/2008, that none of those applicants had taken up “illegal" employment and thus had not committed any "immigration offence” as expressed in §8(2)(c) of the Policy.  He extended that acceptance to the applicants in HCAL8/2009.  One would have thought that to be an end to the matter, for it is difficult to see upon what sensible basis it can be contended by the respondent that the prosecutions fell within its own expressed and published Policy.

19.  However, Mr Cheung contended that §8(2)(c) “wrongly” expressed the intention behind the Policy.  That may well be so:  Mr Cheung would be in the best position of anyone to make that assessment as the author of the documents which set out the Policy.  He then went on to submit that the Policy should be interpreted so as to be understood to include a prohibition against taking up employment of any form - notwithstanding the express qualification in §8(2)(c) of the Policy requiring that the employment be “illegal”.

20.  The respondent’s contention is that it is inappropriate to construe the policy as if it were legislation or a statutory instrument.  I accept that to be so but as Stock JA pointed out in WONG Wei-man and The Amusement Game Centres Appeal Board and Another HCAL775/2000:

"... I note that in R v Secretary of State for the Home Department, ex parte Lancashire Police Authority [1992] COD 93, it was held that whilst it was not necessary or proper to construe a policy in a way in which an Act of Parliament or a statutory instrument would be construed, it was necessary to construe it simply in the way in which an educated person acquainted with the factual context would construe it, by giving to it a common sense meaning and without resort to any such legal rule."

21.  I have difficulty with the proposition that to construe the phrase "taking up illegal employment" as meaning "taking up any employment" is an application of common sense. The fundamental purpose of formulating a policy, and then publishing it, must be to allow persons who may be affected by the policy properly to understand how it is they may be affected and to regulate their conduct accordingly.  The respondent's submission is untenable, for such an approach would render purposeless the exercise of formulating and publishing the Policy. 

22.  In my judgment, the applicants fell within the category of persons contemplated by the Policy who "normally" would not be prosecuted until such time as their claims had been determined.  Whilst the respondent undoubtedly retains a residual discretion to prosecute, there seem to me to be two obstacles in his way in the present matter: first, there has been no suggestion on his part that anything, other than the fact of their alleged employment, took the applicants outside the circumstances in which "normally" there would be no prosecution; and, secondly, the acceptance that that employment did not constitute an immigration offence.

23.  Contrary to the conclusion arrived at by the magistrate, I am satisfied that the prosecution of the applicants fell outside the prosecution policy.

Decision 2: Were the prosecutions, being outside the Policy, an abuse of process?

24.  The decision whether or not to institute and maintain a prosecution against a person alleged to have committed an offence is one which vests in the respondent.  This is provided for in Article 63 of the Basic Law:

"The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference."

25.  Prior to the enactment of the Basic Law, it was well settled that there was no power to review the actual decision by the Attorney General to institute or to decline to institute a prosecution. It is well established that whilst that power vests in the respondent, proceedings may be stayed if the prosecution amounts to an abuse of process. 

26.  In KEUNG Siu-wah v A-G [1990] 2 HKLR 238 Fuad VP, giving the judgment of the court, observed at 255E, emphasising the "exceptional circumstances" which must exist before a court will stay proceedings:

“In my judgment it is a constitutional imperative that the courts do not attempt to interfere with the Attorney General's discretion to prosecute, but once the charge or indictment comes before a court for hearing, it can consider whether the prosecution should be allowed to continue if grounds amounting to an abuse of process are raised.  The Australian judges in R v Barton (1980) 32 ALR 449 were not taking too technical or artificial a view.  Their decision recognizes and preserves the unique constitutional position of the Attorney General, while reserving to a court its inherent jurisdiction to prevent an abuse of its process.

In the criminal field this is still a developing and unsettled area of the law, but one thing is clear - exceptional circumstances must exist before a court declines to proceed with a trial upon a properly formulated charge or indictment which is within its jurisdiction to hear and determine."

27.  Stock JA in Re C (A Bankrupt) [2006] 4 HKC 582, acknowledging a court's right to stay proceedings on the basis of an abuse of process, expressed the view concerning the phrase "free from any interference" under Art. 63 of the Basic Law:

"20.   I apprehend that it is to … interference of a political kind to which Art. 63 is directed.  But the rule that ensures the Secretary's independence in his prosecutorial function necessarily extends to preclude judicial interference, subject only to issues of abuse of the court's process and, possibly, judicial review of decisions taken in bad faith...

21….

22.    This is not to say that the courts are powerless to prevent an abuse of the process, but the exercise of such a judicial power, even though it may have the effect of bringing proceedings to a halt, arises after the proceedings and, as the phrase ‘abuse of process’ itself illustrates, is a power directed at the preservation of the integrity of the judicial process...”

28.  In RVv Director of Immigration[2008] 4 HKLRD 529, it was the decisions of the Director to charge that applicant with an offence of making a false representation to an immigration assistant contrary to s. 42(1)(a) of the Immigration Ordinance (the Ordinance), a later decision to charge an offence of using a false document contrary to s. 42(1)(b) and the subsequent decision of the Director to amend the charges which were challenged by way of judicial review. 

29.  The applicant had entered Hong Kong using a false travel document, a passport purportedly issued by the Government of Cameroon.  In addition to the charges noted above, a charge alleging that the applicant had breached his conditions of stay by overstaying was withdrawn at a very early stage of criminal proceedings. That withdrawal would have been consistent with the Policy.

30.  Hartmann J. summarised the grounds upon which judicial review was sought as follows:

“32.   First, it is said that the decisions are inconsistent with, and contradict, the Secretary for Justice’s own prosecution policy...

33.    Second, it is said that the decisions undermine the applicant's basic right to seek asylum in Hong Kong, a right enshrined in international law....

34.    Third, it is said that the decisions constitute an abuse of process.”

31.  In regard to the first two grounds, Hartmann J. went further in RV than did the Court of Appeal inin Re C,holding:

“68.   In my judgement, it must therefore be the case that, since the Basic Law came into effect, this court has the power to determine whether the Secretary for Justice, in his control of criminal prosecutions, has, or has not, acted within the limits of his constitutional power.  The means for that determination is judicial review.  To come to this conclusion is not a defiance of binding precedent, it is recognition of a new constitutional order and the duties of our courts in respect of that new order.”

32.  After considering how to determine whether the respondent has acted ultra vires his constitutional powers, he went on to say, in regard to the issue of abuse of process:

"104. What may constitute an abuse of process of the court is, of course, a very different issue to the issue of whether the Secretary for Justice, in his control of criminal prosecutions, has acted outside his constitutional powers.

105.  Whether the criminal court will find the prosecution of the applicant to constitute an abuse of the court's process is another matter.

106.  ...

107.  ... I refer to the recent observations of the Court of Appeal in YEUNG Chun-pong v Secretary for Justice [2008] 3 HKLRD 1, in which... the court warned against the increasingly unmeritorious use of judicial review as a means of making collateral challenges in criminal proceedings...

108.  In respect of allegations of abuse of process - essentially the position in the present application - Stock JA issued a warning that the power to order a stay by this Court on a judicial review should only be exercised in the most exceptional circumstances.  He said the following:

Courts elsewhere have also become increasingly troubled by the frequency of applications to stay proceedings on the grounds of abuse of process, and by assumptions made as to the extent of the discretion.  This is not to assert that meritorious applications are never made, nor to discourage counsel from their clear duty when their professional judgment, properly informed of the exceptional circumstances that warrant a stay, dictates the making of the application...."

33.  There can be no doubt that to stay proceedings on the grounds of an abuse of process is an extraordinary remedy to be resorted to only in exceptional, or the most exceptional, circumstances (HKSAR v LEE Ming-tee & Anor (2001) 4 HKCFAR 133; YEUNG Chun-pong v Secretary for Justice [2008] 3 HKLRD 1 at §§71-79).  In my judgment, the fact that a prosecution has been instituted outside of a prosecution policy is not, of itself, such an exceptional circumstance as will result, inevitably, in a stay of proceedings.

34.  The applicants rely upon three English decisions contending that a prosecution without the terms of a policy is per se oppressive and, consequently, inevitably amounts to an abuse of process in respect of which an applicant would be entitled to a stay of proceedings.  None, in my judgment, supports that proposition.

35.  In R v Uxbridge Magistrates Court and Another, ex p Adimi [2001]QB 676 the court was asked to consider decisions by various magistrates relating to the position of a refugee under article 31(1) of the Convention and Protocol relating to the Status of Refugees (1951).  The prosecutions in that matter, however, arose out of the possession/use of false documents in order to gain access to the United Kingdom in order that the claims for asylum may be made: in this connection Simon Brown LJ confined the ability to invoke abuse of process jurisdiction in the following manner, at 684D:

"... Provided that the respondents henceforth recognize the true reach of article 31 as we are declaring it to be, and put in place procedures to ensure that those entitled to its protection (i.e. travellers recognizable as refugees whether or not they have actually claimed asylum) are not prosecuted, at any rate to conviction, for offences committed in their quest for refugee status, I am inclined to conclude that, even without enacting a substantive defence under English law, the abuse of process jurisdiction is able to provide a sufficient safety net for those wrongly prosecuted." [emphasis provided]

36.  As has already been seen, §10 above, the Policy provides that an asylum seeker or torture claimant will not be prosecuted for an immigration offence relating to his claim.  None of the present applicants has been charged for an offence committed in his quest for refugee status.

37.  R v Adaway [2004] EWCA Crim 2831 related to an appeal against conviction of a strict liability offence created by the Trades Description Act.  The trial judge had declined to stay the proceedings as an abuse of process due to an apparent lack of proof that the appellants met one or more of two stipulated criteria required before a prosecution was "taken forward", the appellants contending that the District Council which had initiated the prosecution had acted oppressively.  The court found that the submission that the judge ought at the outset to have reached the conclusion that the prosecution was oppressive was well founded.  On that basis it held that the judge had exercised his discretion in refusing the application for stay in a way which was without foundation, allowed the appeal and quashed the conviction.

38.  I do not accept that prosecution outside a policy is oppressive per se: whether there is oppression will be fact sensitive.  In the present instances, even though the prosecutions were outside the Policy they were ill-advised, at worst, and not oppressive.

39.  The third decision relied upon by the applicants, that of R v Asfaw [2008] UKHL 775, concerned the prosecution of a refugee who was in transit in the United Kingdom between Ethiopia and the United States: having entered the United Kingdom on a false Ethiopian passport, she was arrested when attempting to leave a little over an hour later on a false Italian passport.  The certified point of law illustrates how vastly different were the issues which fell for the consideration by the House:

"If a defendant is charged with an offence not specified in s.31(3) of the Immigration and Asylum Act 1999, to what extent is he entitled to rely on the protections afforded by Art. 31 of the 1951 United Nations Convention Relating to the Status of Refugees?"

40.  The respondent has relied upon LEE Ming-tee & Anor in resisting the application.  Ribeiro PJ, in whose judgement the other members of the court concurred, recognized two broad categories in which applications to stay criminal proceedings are usually brought: first, where, notwithstanding the range of remedial measures available at trial, a fair trial for the accused is found to be impossible and continuing the prosecution would amount to an abuse of process (at 148J); secondly, where a fair trial remains possible but the circumstances involve an abuse of power which so offends the court's sense of justice and propriety that the entire prosecution is tainted (at 150A).

41.  There has been no suggestion by the applicants, nor can such a suggestion sensibly be made, that a fair trial for them is impossible.

42.  Ribeiro PJ discussed the principle underlying the second category, that under which the applicants seek relief, at 182 et seq:

"In R v Horseferry Road Magistrates Court, ex p Bennett [1994] 1 AC 42, where such a stay was granted, the abuse was (on assumed facts) extreme. …

It was an abuse which [Lord Bridge] described as calling into question "the maintenance of the rule of law itself"... Moreover, but for such abuse, the accused would not have been brought within the court's jurisdiction at all, plainly a reason for suggesting that the court should decline to exercise jurisdiction so unacceptably acquired.  As Lord Lowry described it, the case was one in which:

... it offends the court's sense of justice and propriety to be asked to try the accused in the circumstances.

In R v Latif [1996] 1 WLR 104, the House of Lords gave valuable guidance as to how such applications should be approached.  Lord Steyn, with whom the other Law Lords agreed, pointed out that where some form of official misconduct was involved in the alleged abuse of process, the court is faced with a "perennial dilemma":

If the court always refuses to stay such proceedings, the perception will be that the court condones criminal conduct and malpractice by law enforcement agencies.  That would undermine public confidence in the criminal justice system and bring it into disrepute.  On the other hand, if the court were always to stay proceedings in such cases, it would incur the reproach that it is failing to protect the public from serious crime.

The solution adopted was as follows:

The weaknesses of both extreme positions leaves only one principled solution.  The court has a discretion: it has to perform a balancing exercise.  If the court concludes that a fair trial is not possible, it will stay the proceedings.  That is not what the present case is concerned with.  It is plain that a fair trial was possible and that such a trial took place.  In this case the issue is whether, despite the fact that a fair trial was possible, the judge ought to have stayed the criminal proceedings on broader considerations of the integrity of the criminal justice system.  The law is settled.  Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed: R v Horseferry Road Magistrates Court, ex p Bennett [1994] 1 AC 42 (at p. 112)

Lord Steyn added:

The speeches in R v Horseferry Road Magistrates Court, ex p Bennett [1994] 1 AC 42 conclusively established that proceedings may be stayed in the exercise of the judge's discretion not only where a fair trial is impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system that the trial should take place.  An infinite variety of cases could arise.  General guidance as to how the discretion should be exercised in particular circumstances will not be useful.  But it is possible to say that in a case such as the present the judge must weigh in the balance the public interest in ensuring that those that are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means (at pp. 112-3).”

43.  The fact that these prosecutions were in contradiction of the Policy cannot be said, reasonably, to have adversely affected the integrity of the criminal justice system let alone to amount to an affront to the public conscience.

44.  It follows, therefore, that the magistrate was correct in refusing to stay the proceedings against the applicants on the basis that the prosecution amounted to an abuse of process.

45.  A person successfully prosecuted contrary to an established policy is not entirely deprived of relief for it should be remembered that in the event of such a conviction the sentencer may make an allowance, in his discretion, for that fact in determining the appropriate sentence  (R v NG Tung-fong [1992] 1 HKCLR 114 at 118 lines 15-25; HKSAR v HO Tung-man CACC363/1997).

Decision 3: The effect of the s. 36 recognizance

46.  It is important to recall that whilst it may have been the conclusion that the applicants were in employment which triggered the prosecution, the prosecution is not one for "illegally working" in Hong Kong - were such an offence to exist - but one which asserts that, contrary to s. 38(1)(b) of the Ordinance, they remained, on the day of the alleged offence, in Hong Kong without the authority of the Director after having landed unlawfully.

47.  The applicants do not dispute that they had landed unlawfully.  Indeed, the application for stay of proceedings on the grounds of abuse of process by virtue of the prosecution outside of the Policy has to be predicated upon acceptance of the unlawfulness of their arrival.

48.  The issue, then, is a narrow one: whether on the day of the alleged offence they were here with “the authority” of the Director or not.

49.  The applicants have a straightforward contention: that by releasing them from custody on a recognizance issued pursuant to the provisions of s.36 of the Ordinance, they have been granted authority by the Director to remain in Hong Kong albeit, perhaps, only until such time as their claims for asylum have been decided.  If they are correct in that submission, then they would have an arguable defence to the charge.

50.  The respondent, conversely, contends that the recognizance does not amount to authority for them to remain here.  If that is so, then the magistrate was correct to find that they could not successfully argue that they derived authority to remain from the recognizance.

51.  The respondent's submissions on this point are threefold: first, that in an annexure to the recognizance itself it is stated that that recognizance does not give the holder permission to remain in Hong Kong; secondly, that authority can only be given under s.13 of the Ordinance; and, thirdly, that in decisions of the Court of Appeal, it has already been held that authority to remain in Hong Kong does not derive from the issue of such a recognizance - consequently the magistrate was bound by those decisions and did not err in his finding.

52.  The first submission may be dealt with shortly.  The injunction that the recognizance does not provide authority to remain is the Director’s understanding of the position.  If he misunderstood it, and it seems to me that he has, that statement is of no assistance to the respondent.

53.  The second contention, that authority can only be given under s.13 of the Ordinance, depends upon the correct interpretation to be given to other sections of the Ordinance as there is nothing within s.13 which, in terms, precludes authority being derived from any other section of the Ordinance.  Nor does section 38(1) make any reference to an accused person remaining in Hong Kong without an authority granted under s.13: it refers simply to a lack of authority.

54.  The main pillar of the respondent's argument is the previous decisions of the Court of Appeal where there was consideration of various aspects of the Ordinance, including in one instance, specifically s.36.  In particular, the respondent relies upon the decisions in NG Chun-hing & Ors v Director of Immigration CACV380/2002 (unreported) and LAI Yau-chik (A minor) v Director of Immigration & Anor [2002] 2 HKC 546.

55.  It is necessary to have regard to the facts of those two cases to appreciate the differences which exist between the applicants in those proceedings and these applicants, as well as between the nature of the proceedings and the relief sought. 

56.  In NG Chun-hing & Ors the plaintiffs (I shall refer to them as such for consistency with the extracts from the judgments which follow) had sought, amongst other relief, an injunction prohibiting the Director from making decisions of repatriation pending the determination of court actions which they had instituted.  Those actions related to applications for right of abode which they had made after they had come to Hong Kong lawfully: once they had arrived in Hong Kong they applied for right of abode and, for the purpose of processing their applications, the Director extended their lawful stay by giving them what were described by Woo JA as "... permits commonly known as ‘going out passes’".  The Director successfully sought to have the statements of claim struck out on the grounds that they disclosed no reasonable cause of action and/or were scandalous, frivolous or vexatious.  The plaintiffs then appealed to the Court of Appeal to reverse the decision of the judge at first instance. 

57.  The English translation of the judgment, given in Chinese, shows that Woo JA summarised the judge's findings as follows:

"(1)    The plaintiffs all landed in Hong Kong on the strength of... two-way permits... and were permitted by the defendant to remain in Hong Kong as visitors for a specified period pursuant to section 11 of the Immigration Ordinance.  The plaintiffs never left Hong Kong after the period of stay expired, nor had they been granted permission by the defendant to extend their stay pursuant to section 11(5A) of the Ordinance.  The plaintiffs were therefore overstayers in Hong Kong.

(2) The plaintiffs had been issued with recognizances (commonly known as "going out passes") by the defendant under section 36 of the Ordinance.  However, the recognizance were only interim security for permitting the plaintiffs, who were overstayers or illegal immigrants, to remain in Hong Kong as an alternative to detention, pending repatriation or the issuance of removal orders.  The recognizances did not amount to any permission granted pursuant to the Ordinance by the defendant to the plaintiffs to stay in Hong Kong.

(3) The plaintiffs had overstayed in breach of the period of stay or, having landed in Hong Kong unlawfully, remained in Hong Kong.  By doing so, they had committed criminal offences as stipulated in sections 41 and 38(1)(p) of the Immigration Ordinance.

(4) ... Deputy Judge Cheung was of the view that the defendant had not permitted or authorised the plaintiffs to stay in Hong Kong lawfully; rather, the defendant had suffered those plaintiffs, had who had no right to stay in Hong Kong, to continue to stay in Hong Kong without permission or authorisation for the sole reason that they were awaiting the outcome of their litigation.

…

(7) … the plaintiffs still failed to satisfy the conditions...[as their] circumstances did not meet the requirement of "ordinary residence in Hong Kong for a continuous period of three years".

58.  Woo JA found that these "... decisions are beyond reproach."

59.  In a concurring judgment, Cheung JA identified the fact that this was a complex issue which involved the "... eligibility of Mainland residents to stay in Hong Kong”.  The real distinction between those proceedings and this criminal prosecution therefore are immediately clear.  He went on to discuss what forms were necessary for a Mainland resident to submit to the Department of Immigration in order to claim the right of abode and to discuss the requirement of three years continuous residence in Hong Kong.  Dealing with the position of those plaintiffs under a recognizance issued pursuant to s.36 of the Ordinance he said:

“27.   The plaintiffs contended that, as they had signed document commonly known as "going out passes", they had been permitted to stay in Hong Kong lawfully.  These documents were recognizances signed and issued under s. 36 of the Immigration Ordinance.  They were documents which the Director of Immigration, in exercise of his statutory power, required the plaintiffs to sign.  The recognizances were an alternative to the exercise by the Director of his power of detaining the plaintiffs under ss. 27, 32 or 34 of the Immigration Ordinance, in that the plaintiffs, who had entered into the recognizances, were free from detention upon the terms of the recognizances.

...

29.    Sections 32(2A) and (3A) of the Immigration Ordinance also empower the Director of Immigration and his subordinates to detain a person (including an illegal immigrant or an overstayer who is in breach of conditions of stay) pending the decision as to whether or not a removal order should be made under section 19(1)(b) against that person, and to detain a person against whom a removal order has been made, pending his removal from Hong Kong under section 25.

30.    Under section 36, a recognizance is applicable to a person who can be detained under s. 27, 32 or 34 but is not so detained at the time.  The plaintiffs in the present case definitely came under this category.  If they applied for extension of stay, they would have to be further examined and they were persons who could be detained.  The application of a recognizance to a person who can be detained but is not at the time so detained is, in my view, not in any way contrary to human rights legislation.

31.    The issue of recognizance is an administrative measure intended to provide an alternative to detention, and is wholly distinct from the granting by the Director of Immigration of permission to overstayers to continue to stay in Hong Kong lawfully.  For this reason, the plaintiffs also did not meet the requirements of lawful stay….”

60.  It is clear, therefore, that what the Court of Appeal was saying was that, for the purposes of a Mainland resident claiming right of abode in Hong Kong, the period of presence in Hong Kong consequent upon the issue of a recognizance under s.36 of the Ordinance did not count towards the required period of three years residence.

61.  LAI Yau-chik similarly involved an application for right of abode, this time by a young child born in the Mainland who asserted that her natural father had ordinarily resided in Hong Kong for a continuous period of not less than seven years.  The father had arrived in Hong Kong in April 1979 when the "touch base" policy was in force in Hong Kong.  In May 1979 he applied for an identity card and two days later obtained what was known as a "clearance endorsement".  In July 1979, an entry permit which was expressed to permit him to remain in Hong Kong until October 1979 was issued to him.  In November 1979 he collected his Hong Kong identity card.  The applicant was born on 10 June 1986 and in May 1995 made an application for a certificate of entitlement to the right of abode in Hong Kong.  The applicant was notified of the refusal of that application by letter dated 11 March 2005 from the Director.  Once again, there was a factual matrix, entirely different from the present applications, against which the Court of Appeal was required to make its decision.

62.  What was necessary for the Court of Appeal there to decide was whether the clearance endorsement in May 1979 constituted an authority by the Director for the applicant's father to remain in Hong Kong from that date.  The court accepted that, as a legal proposition "authority" and "permission" can be implied from circumstances: it went on to find, however, that the period of time involved in processing an application does not amount to an implied permission to remain and that the father's presence in Hong Kong was "tolerated" rather than as a consequence of his being granted authority.

63.  The respondent relies in particular upon the contents of paragraphs 31 and 32 of the judgment which read:

"31.   It will be noted that ‘authority’, ‘permission’ and ‘sufferance’ have different meanings.  The passage cited above in Re Wong Shu Hung [[1985] HKLR 463] shows clearly that there is a distinction between the three terms, authority, permission and sufferance.  We consider that such a distinction should be made in relation to the understanding of the scheme of the Ordinance.  Authority is referred to in s.2(4) and s.13 of the Ordinance.  Both of these provisions referred to unlawful landing that can be regularised only by the Director authorising ‘a person who landed in Hong Kong unlawfully to remain in Hong Kong’ under s.13.  Indeed, as Mr Marshall has pointed out, the two provisions are married together.  On the other hand, ‘permission’ is used in a number of provisions in the Ordinance.  For example, in s.7, it is provided that a person may not land in Hong Kong without the permission of an immigration officer unless he satisfies certain conditions set out therein.  Section 4 provides that an immigration officer may examine any person on his arrival in Hong Kong and may require that person to submit to further examination to decide if that person is committing or has committed an offence under s.38(1)(b), ie, if he has landed in Hong Kong unlawfully.  Section 11(1) gives power to an immigration officer to give a person permission to land in Hong Kong or refuse him such permission.

32.    While Mr McCoy accepts that the word ‘authority’ was used in the Ordinance to denote what was required to regularise the position of illegal entrants whereas ‘permission’ was used in conjunction with legal entrants, Mr Marshall has, we consider correctly, demonstrated to us that the scheme of the Ordinance was such that for illegal entrants, the ‘authority’ under s. 13 required for them to remain in Hong Kong must be a conscious determination on the part of the director, which would not be made until after thorough investigation and proper consideration.  Further, Mr Marshall submits that although an illegal entrant might stay in Hong Kong while his case was being investigated and processed, before the determination whether an authority under s.13 was made, his position was similar to that when he was subject to examination or further examination by the immigration officer under s.4 of the Ordinance.  The illegal entrant could not be treated as having the authority of the director under s.13 to remain in Hong Kong.  We consider that this is a correct view of the scheme of the Ordinance.”

64.  Once again, therefore, the Court of Appeal was required to consider the issue of authority only in connection with the concept of a period of residence for the purposes of laying the foundation to assert a claim to a right of abode.

65.  Although the Court of Appeal noted that the words "... ‘authority’, ‘permission’ and ‘sufferance’ have different meanings" in the context in which that decision was made, it is to be noted that whilst s. 38(1)(a) refers to a person landing "without the permission of an immigration officer" and section 38(1)(b) refers to a person remaining in Hong Kong "without the authority of the Director”, the title of that section is "Prohibition on the landing and remaining without permission, and penalty for carrying illegal immigrants" suggesting that the terms are used interchangeably - in that section at least.

66.  Each of the decisions relied upon by the respondent was made against a distinctly different factual background compared to those which pertain in the present proceedings.  Moreover, the present proceedings flow from the institution of criminal proceedings against the applicants, whereas the proceedings in NG Chun-hing & Ors and LAI Yau-chik were civil proceedings instituted by those applicants.  In these applications the applicants are not seeking to assert the acquisition of any right but are simply seeking to establish whether they have an arguable defence against potential criminal sanction.

67.   Consequently, but with due deference, I conclude that NG Chun-hing & Ors and LAI Yau-chik are distinguishable and, as a consequence, the magistrate was not and nor am I bound by them on the issue as to whether the present applicants had authority from the Director to remain in Hong Kong: obviously, I recognize the persuasive value of the approach adopted in reaching those decisions. 

68.  I do not think it to be inconsistent with the scheme of the Ordinance, or indeed with the decisions in NG Chun-hing & Ors and LAI Yau-chik, to find that, for the purposes of providing a defence to criminal proceedings, authority to remain in Hong Kong may be derived other than from s.13 of the Ordinance, by giving "authority" its ordinary linguistic and commonsense meaning.

69.  It may well be that s.13 provides the only vehicle by which a person may acquire a right to remain, or rights flowing as a consequence of remaining, in Hong Kong but that does not mean, of necessity, that "authority to remain" as contemplated in s.38(1)(b) cannot be derived from some act or acts of the Director pursuant to a different section, whether expressly or by implication - LAI Yau-chik above.

70.  Nor do I find the concept of deriving authority from a section of the Ordinance other than s.13 to be inconsistent with the expressed view in Ng Chun-hing that " [t]he issue of recognizance is an administrative measure intended to provide an alternative to detention...".  That may very well be the purpose of the recognizance but that does not mean that the result cannot be to provide authority for the signatory to the recognizance to remain in Hong Kong.

71.  Some support for this is to be found in Olanrewaju Taofeeq Makinde v Secretary of State for the Home Department [1991] Imm AR 469.  A deportation order had been made against the appellant on the grounds that the Secretary of State was satisfied that he had since, an identified date, "remained without authority" in the United Kingdom.  However, prior to that date the appellant had been detained in custody on criminal charges: those charges were withdrawn but his passport was retained by the police - when he went to collect it he was arrested as an overstayer and served with the notice of intention to deport.  The Tribunal said, at 473:

"... if by the authority of the Secretary of State an applicant was detained, particularly if that detention was under the provisions of the Immigration Act 1971, it would seem difficult to argue that he was not in this country with the authority of the Secretary of State.  It would be somewhat removed from commonsense and indeed the legal structure of the Immigration Act for a Secretary of State to say, in effect, "I authorised your detention" and at the same time to maintain that "you are not here with my authority."

72.  The Tribunal then considered the position where, as here, a person was detained in lawful custody but not by virtue of an order of the Secretary of State.  It went on to say, at 475:

"... in this case, in one sense the appellant is here with authority in the sense that the state through one of its organs has made it, whether for a right or wrong reason, impossible for him to depart.  We cannot view immigration law in a vacuum nor can we take it that the Secretary of State's understandings of language used in an immigration context are necessarily those to whom that language is addressed.  In particular where the language departs from the ground on which an action may be taken, it cannot be that any understanding of the Secretary of State that the ground is reflected in language should lead to any necessary inference that it is.

Adopting a commonsense construction of the notice of decision, in our view, the Secretary of State should be held to the words of his notice.  It seems to us that if a reasonable man were asked whether the appellant was in this country "without authority" when he was imprisoned, the answer would be "no"….”

73.  The observation that the understanding of the language used by the Secretary of State in his deportation notice may not be that of a person to whom the notice was addressed may be of equal applicability to the issue of quite what the applicants in the present matter understood to be the effect of the recognizance.  As it may be that one or more of the applicants may wish to argue that such is relevant to the issue of his mens rea in committing the alleged offence and as this will be a fact sensitive decision, I say no more on this aspect.

74.  That aside, the reality of the situation in these applications is that the applicants, having landed in Hong Kong unlawfully, could be held for a maximum period 49 days under the Ordinance whilst the Director made a determination as to their status and removal.  The applicants made their asylum/torture claims.  The Director, it seems to me, made a conscious decision - presumably by applying a predetermined policy, which would necessarily be consistent with the policy on prosecution - that the applicants would be able, to use a neutral verb, to remain in Hong Kong at least pending the outcome of the decision in respect of their asylum/torture claims.  In other words, whilst the Director enjoyed the power to make a removal order and to execute that order, he made a decision not to remove the applicants: he did not merely acquiesce in or suffer their continued presence.

75.  The Director then required - to use the language of s.36 -  the applicants to enter into the respective recognizances.  The terms of those recognizances were very simple and uncomplicated: each applicant acknowledged that he would pay to the government a fixed amount of money if he failed to report to an identified reporting office on stipulated days during stipulated hours.  This regime was expressed, in the recognizance, to continue until the recognizance "ceases to have effect".  The applicants were then released to live at large in the Hong Kong community.

76.  It is also of significance that there is nothing contained in the recognizance itself that provides any indication to the holder of that recognizance that any form of restriction, for example by way of a prohibition against taking up employment, is imposed on him once he is released and whilst he remains in Hong Kong.  The annexure to the recognizance referred to in §§51 and 52 above purports to "remind" the holder of a recognizance about certain matters: those matters are not common to every recognizance.  In any event, it is now quite plain that there is no power to impose conditions on a recognizance (see V v Director of Immigration [2006] 3 HKC 362) so whatever the contents of the annexure may be, they cannot be binding on the holder of recognizance.

77.  It seems to me that if the factual situation which I have outlined in the preceding three paragraphs were made known to the hypothetical reasonable person, or the educated person referred to in WONG Wei-man and The Amusement Game Centres Appeal Board and Another above, and he or she were asked whether the applicants were in Hong Kong without the authority of the Director, the response would be "no".

78.  The applicants suggested that they were able also to invoke the principle against penalisation under a doubtful law.  I do not accept that proposition for there is no doubt about the nature of the offence created by s.38(1)(b) nor about what the prosecution need prove to secure a conviction.

79.  It follows that, contrary to the magistrate's finding, in my judgement, the recognizance under s.36 of the Ordinance constitutes an authority from the Director for the applicants to remain in Hong Kong, thus providing them with a defence to a charge under s.38(1)(b) of the Ordinance if it were in effect as at the date of the comission of the alleged offence.

Conclusion

80.  In the circumstances, the order that I make in regard to the 1^st to 6^th , 9^th, 11^th, 15^th and 16^th, 19^th and 20^th and 23^rd to 29^th applicants in HCAL 150/2008 and 1^st to 10^th applicants in HCAL 8/2009 is as follows:

(1)  the decisions of Mr T H Casewell, a permanent magistrate, made on 27 November 2008 whereby he held

 (1)    that the prosecution of the charges under s.38(1)(b) of the Immigration Ordinance against the respective applicants was within the prosecution policy; and

(2) it is not possible for the applicants to successfully argue that the recognizance entered into by them under s.36 of the Ordinance amounts to an authority of the Director to remain in Hong Kong or provide them with a defence to the charges;

  be and are hereby quashed;

  and

(2)   pursuant to Order 53, Rule 9(4) of the Rules of the High Court, Cap. 4A, the matter is remitted to the magistrate, or a different magistrate of Shatin Magistrates Court, to reconsider it and reach a decision in accordance with the findings of the court.

80. There will further be an order nisi, returnable within 14 days, that the respondent pay the costs of the applicants, including the costs of the leave applications, such costs to be taxed if not agreed.