Attorney General of Hong-Kong v Ng Yuen Shiu

JurisdictionUK Non-devolved
Judgment Date1983
Date1983
Year1983
CourtPrivy Council
[PRIVY COUNCIL] ATTORNEY-GENERAL OF HONG KONG APPELLANT AND NG YUEN SHIU RESPONDENT [APPEAL FROM THE COURT OF APPEAL OF HONG KONG] 1982 Dec. 15, 16; 1983 Feb. 21 Lord Fraser of Tullybelton, Lord Scarman, Lord Bridge of Harwich, Lord Brandon of Oakbrook and Sir John Megaw

Hong Kong - Immigration - Illegal entrant - Repatriation of illegal Immigrants - Statement of policy that each case to be treated on merits - Whether creating right for alien to be heard before deportation

The applicant who was born in China entered Hong Kong illegally from Macau in 1967. In 1976 he was removed to Macau but re-entered illegally shortly afterwards and remained. By 1980 he was the part-owner of a small factory in Hong Kong. In October 1980 the government announced changes in its immigration policy. It abandoned its “reached base” policy whereby illegal entrants had been allowed to remain once they had reached the urban areas without being arrested and it stated that those who had entered illegally would be repatriated. It gave power to the Director of Immigration to make removal orders against them. The announcement created fears among the illegal entrants living in Hong Kong who had entered from Macau and who were of Chinese origin that they would be repatriated to China. On their petitioning the Governor a senior immigration officer made an announcement of the government policy which it was intended should be applied to them. That included the statement that each illegal entrant from Macau would be interviewed and his case “treated on its merits.” Having been questioned by an immigration officer, the applicant was detained and the Director of Immigration then made a removal order against him without giving him an opportunity of making any representations as to why he should not be removed. The applicant applied to the High Court for orders of certiorari to quash the removal order and prohibition restraining the director from executing it. The Full Bench of the High Court refused the application. On the applicant's appeal the Court of Appeal granted an order of prohibition preventing the director from executing the removal order until he had given the applicant an opportunity to be heard.

On the Attorney-General's appeal to the Judicial Committee:—

Held, dismissing the appeal, that where a public authority charged with the duty of making a decision promised to follow a certain procedure before reaching that decision, good administration required that it should act by implementing the promise provided the implementation did not conflict with the authority's statutory duty; that, accordingly, assuming that an alien had no general right to be heard before being deported, the implementation of the promise to interview each illegal immigrant and decide each case on the merits required the applicant to be given an opportunity to state his case and the failure to ask him whether he wished to make representations why he should not be removed was a sufficient ground for setting aside the decision; and that, accordingly, the court would substitute for the inappropriate order of prohibition an order of certiorari to quash the decision (post, pp. 740E–F, 741B–C, 742C–F, 743B–D).

Reg. v. Liverpool Corporation, Ex parte Liverpool Taxi Fleet Operators' Association [1972] 2 Q.B. 299, C.A. applied.

Dictum of Barwick C.J. in Salemi v. MacKellar (No. 2) (1977) 137 C.L.R. 396, 404 disapproved.

Judgment of the Court of Appeal of Hong Kong varied.

The following cases are referred to in the judgment of their Lordships:

O'Reilly v. Mackman [1982] 3 W.L.R. 1096; [1982] 3 All E.R. 1124, H.L. (E.).

Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain (No. 2) [1979] 1 W.L.R. 1401; [1979] 3 All E.R. 545, D.C.

Reg. v. Criminal Injuries Compensation Board, Ex parte Lain [1967] 2 Q.B. 864; [1967] 3 W.L.R. 348; [1967] 2 All E.R. 770, D.C.

Reg. v. Liverpool Corporation, Ex parte Liverpool Taxi Fleet Operators' Association [1972] 2 Q.B. 299; [1972] 2 W.L.R. 1262; [1972] 2 All E.R. 589, C.A.

Salemi v. MacKellar (No. 2) (1977) 137 C.L.R. 396.

Schmidt v. Secretary of State for Home Affairs [1969] 2 Ch. 149; [1969] 2 W.L.R. 337; [1968] 3 All E.R. 795; [1969] 1 All E.R. 904 Ungoed-Thomas J. and C.A.

The following additional cases were cited in argument:

Attorney-General of the Gambia v. N'Jie [1961] A.C. 617; [1961] 2 W.L.R. 845; [1961] 2 All E.R. 504, P. C.

Cooper v. Wandsworth Board of Works (1863) 14 C.B.N.S. 180.

Durayappah v. Fernando [1967] 2 A.C. 337; [1967] 3 W.L.R. 289; [1967] 2 All E.R. 152, P.C.

FAI Insurances Ltd. v. Winneke (1982) 41 A.L.R. 1.

Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 C.L.R. 487.

Padfield v. Minister of Agriculture, Fisheries and Food [1968] A.C. 997; [1968] 2 W.L.R. 924; [1968] 1 All E.R. 694, C.A. and H.L.(E.).

Pagliara v. Attorney-General [1974] 1 N.Z.L.R. 86.

Reg. v. Governor of Brixton Prison, Ex parte Soblen [1963] 2 Q.B. 243; [1962] 3 W.L.R. 1154; [1962] 3 All E.R. 641, John Stephenson J. and C.A.

Reg. v. Secretary of State for Home Affairs, Ex parte Birdi (unreported), February 11, 1975; Court of Appeal (Civil Division) Transcript No. 67B of 1975, C.A.

Rex v. Leman Street Police Station Inspector, Ex parte Venicoff [1920] 3 K.B. 72, D.C.

Ridge v. Baldwin [1964] A.C. 40; [1963] 2 W.L.R. 935; [1963] 2 All E.R. 66, H.L.(E.).

Salemi v. MacKellar (No. 1) (1976) 137 C.L.R. 388.

Tobias v. May [1976] 1 N.Z.L.R. 509.

APPEAL (No. 16 of 1982) by the Attorney-General of Hong Kong (and cross appeal) from a judgment (May 13, 1981) of the Court of Appeal of Hong Kong (McMullin V.-P., Li J.A. and Baber J.) whereby that court allowed an appeal by the applicant Ng Yen Shiu, also known as Ng Kam Shing, from a judgment (December 4, 1980) of the Full Bench of the High Court quashing a writ of habeas corpus directed to the Commissioner of Prisons and refusing the applicant's application for orders of certiorari and prohibition restraining the Director of Immigration from executing a removal order made against the applicant on October 31, 1980. The Court of Appeal refused to re-issue the writ of habeas corpus or to grant an order of certiorari but granted an order of prohibition preventing the Director of Immigration from executing the removal order Until the applicant had been given an opportunity of being heard. The applicant's cross appeal was against the Court of Appeal's decision that he was an illegal immigrant.

The facts are stated in the judgment.

Neil Kaplan Q.C. Principal Crown Counsel, Hong Kong and Barrie Barlow, Assistant Principal Crown Counsel. Hong Kong for the Attorney General.

Louis Blom-Cooper Q.C. and Richard Drabble for the applicant.

Cur. adv. vult.

February 21. The judgment of their Lordships was delivered by LORD FRASER OF TULLYBELTON.

The question in this appeal is whether an alien, who has entered Hong Kong without permission and contrary to the laws of the colony, has a right to a hearing by the Hong Kong authorities, conducted in accordance with the rules of natural justice, either in every case or in the particular circumstances of this case.

The appeal arises out of the serious immigration problem which...

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