Judicial Committee of the Privy Council
| Published date | 01 November 1983 |
| Date | 01 November 1983 |
| DOI | http://doi.org/10.1177/002201838304700404 |
| Subject Matter | Comments on Cases |
JUDICIAL
COMMITTEE
OF
THE
PRIVY
COUNCIL
COMMON
LA
W
RIGHT
TO
A
FAIR
HEARING
For many years illegal immigration into
Hong
Kong has posed a
serious problem. Before 1980, the authorities
adopted
a
"reached
base" policy under which an immigrant who successfully reached
his destination was not disturbed. In that year, however, the policy
was abandoned and the Director of Immigration was empowered to
make removal orders in such cases,
"if
it appears to him that the
person
...
has committed or iscommitting an offence" of remaining
in Hong Kong without authority after illegally landing there.
There
is no statutory requirement that an inquiry must be held before such
an
order
is made. But in
Att-Gen.
for Hong Kong v. Ng Yuen Shiu
[1983] 2 All
E.R.
349
the question was raised as to whether the
appellant was entitled at common law to have a fair inquiry held
before aremoval
order
was made against him. He was of Chinese
origin
and
had landed in Hong Kong from Macao. Persons with his
status were informed by an official of the office of the Secretary for
Security that they would be treated as immigrants from anywhere
other
than China, that they would be interviewed and that, although
no guarantees could be given, each case would be treated on its
merits. In the event, an
order
was made for the removal of the
respondent, without any interview being accorded to him or any
opportunity to present his case for being allowed to stay. When his
case reached the Privy Council,
Lord
Fraser stated that the
"only"
question raised was whether he was entitled to a fair hearing, but
later added that the promise that each case would be treated on its
merits was
"at
the root
of'
the respondent's argument. There were
two separate issues: (1) the general question whether there is at
common law a right to a fair inquiry, and (2) the more particular
question whether that right existed in this particular case in view of
the promise made on behalf of the Government.
The Board's ultimate conclusion was on the basis that the
decision of the Hong Kong courts
that
the respondent was guilty of
262
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