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A A

CACV9/2006 B B

IN THE HIGH COURT OF THE C C

HONG KONG SPECIAL ADMINISTRATIVE REGION

D COURT OF APPEAL D

CIVIL APPEAL NO. 9 OF 2006 E E

(ON APPEAL FROM HCAL NO. 60 OF 2005)

F F

______

G G

BETWEEN

H H

V Applicant

I I and

DIRECTOR OF IMMIGRATION Respondent J J

______

K K

Before : Hon Ma CJHC, Stock & Yeung JJA in Court L L

Date of Hearing : 3 May 2006

M Date of Handing Down Judgment : 19 May 2006 M

N N ______

J U D G M E N T O O ______

P P

Hon Ma CJHC : Q Q

Introduction R R

S 1. Two interesting questions arise in the present appeal both in S

relation to recognizances that may be required to be provided under T T

section 36(1) of the Immigration Ordinance, Cap.115 (“the Ordinance”).

U U

V V

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A A The first question goes into the jurisdiction on the part of an immigration

officer to require recognizances to be given, the second deals with the issue B B

of the validity of recognizances that impose invalid conditions.

C C

2. The relevant facts have been set out in the judgment of Chu J D D

handed down on 25 November 2005 and are essentially these : -

E E

(1) The Applicant (named ‘V’ in the proceedings by reason of

F F his sensitive status) arrived lawfully in Hong Kong on

G 24 December 2000 as a visitor. He was, like all visitors, G

given permission to remain in Hong Kong for a limited

H H time. His wife and three children joined him in April 2001

I and they too were permitted to remain as visitors. I

J J (2) On 4 January 2001, the Applicant applied to the United

Nations High Commissioner for Refugees (“the UNHCR”) K K

for refugee status, his main ground being that if he was

L L forced to return to his home country, he would face the

possibility of being tortured or even killed. This torture M M

claim was repeatedly made to the Director of Immigration

N N (who is the Respondent in the present proceedings).

O O

(3) Initially, the Applicant and his family were granted

P extensions of stay. However, on 10 October 2002, their P

request for extension was refused and they were told to Q Q

leave by 12 October 2002. On 15 October 2002, the

R Applicant and his family surrendered themselves to the R

Immigration Department and were placed on S S

recognizance.

T T

U U

V V

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A A (4) On 17 March 2003, the Director made a removal order

against the Applicant under section 19(1)(b)(ii) of the B B

Ordinance (contravention of conditions of stay) and he

C C was detained at Victoria Prison three days later. By a letter

dated 26 March 2003, the Applicant was informed by the D D

UNHCR that his application for refugee status had been

E E refused. A request for reconsideration was subsequently

F refused as well. F

G (5) On 31 March 2003, Amnesty International (on behalf of G

the Applicant) requested the Director of Immigration not H H

to remove him until his torture claim had been fully

I investigated. This the Director commenced to do on I

14 January 2004. This was pursuant to the obligation J J

placed on him as a result of the decision of the Court of

K K Final Appeal in Secretary for Security v Sakthevel

Prabakar (2004) 7 HKCFAR 187. In that case, it was held L L

that where a person claimed to be a torture victim, he was

M M not to be deported from Hong Kong until his claim had

been thoroughly investigated by the authorities (in that N N

case the Secretary for Security) who had to make an

O O independent assessment even where the UNHCR had

assessed a claim for refugee status. This obligation was P P

imposed on the Government both as a matter of fairness

Q Q and pursuant to Hong Kong’s obligations under Article 3

R of the Convention Against Torture and Other Cruel, R

Inhuman or Degrading Treatment or Punishment (“the S S CAT”).

T T

U U

V V

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A A (6) While the CAT screening was being carried out, on

30 March 2004, the Applicant commenced judicial review B B

proceedings against the Director challenging the removal

C C order that had been made against him on 17 March 2003

(this was HCAL 45 of 2004). Reliance was placed on the D D

Prabakar case.

E E

(7) The Applicant then made an application for bail (as stated F F

above he had been detained). The application, which was

G opposed by the Director on grounds of public security, was G

heard by Hartmann J over the course of a 6-day hearing in H H

which he had to decide issues of public interest immunity.

I Even a Special Advocate was appointed. Hartmann J I

ordered the release of the Applicant from detention but J J

granted bail on terms in that the Applicant was required

K K to : -

L “(a) provide the Court with an identifiable address where L he shall stay after release;”

(b) report twice daily to the police, the first one being M M from 8 to 9 am and the second one being from 3 to

4 pm; N N (c) stay on Hong Kong Island and not leave Hong Kong Island; and

O O (d) provide a surety.”

P (8) On 28 September 2004, the Director rescinded the P

removal order that was the subject matter of the judicial Q Q

review proceedings in HCAL 45 of 2004 but ordered that

R R the Applicant be detained under section 32(2A) of the

Ordinance pending a decision as to whether a fresh S S

removal order should be made. This course had already

T T

U U

V V

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A A been intimated to the Applicant in a letter dated

22 September 2004 from the Department of Justice. B B

C (9) Subsequent correspondence between the parties dealt with C

a number of matters, among them the disposal of the D D

judicial review proceedings and the question of the

E Applicant being required to enter into a recognizance E

under section 36(1) of the Ordinance. Despite the order F F

made by the Director on 28 September 2004 to detain the

G Applicant, this was never carried out. G

H H (10) On 19 October 2004, Hartmann J ordered by consent the

I discontinuance of the judicial review proceedings with I

costs against the Director. J J

(11) On 23 October 2004, the Director required the Applicant K K

to enter into a recognizance on the following terms. This

L L was the recognizance that gave rise to the present

proceedings. The Applicant was required to : - M M

N (a) provide a surety of $2,000 by a Hong Kong resident N

as guarantor; O O

(b) report to the Joint Recognizance Office of the P P

Immigration Department once daily between 9:00 am

Q Q and 10:00 am, Sundays and public holidays excluded;

R R

(c) reside at a given address, namely, 3rd Floor, 120

S Electric Road, North Point, Hong Kong; and S

T T

U U

V V

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A A (d) not to leave Hong Kong Island.

B B

(12) The CAT screening of the Applicant thereafter continued

C and remains ongoing. C

D D The present proceedings

E E

3. On 16 June 2005, the Applicant applied for leave to apply for

F judicial review of the Director’s decision to require him to enter into a F

recognizance. The relevant decisions impugned were those dated G G

28 September 2004 and 23 October 2004 : see paragraphs 2(8) and (11)

H above. H

I I 4. As summarized by Chu J, the Applicant’s challenge was

J two-fold : - J

K K (1) It was said that the Director’s decision to require the

Applicant to enter into a recognizance was not lawfully L L

made because the necessary conditions stipulated in

M M section 36(1) of the Ordinance had not been fulfilled.

Specifically, the Applicant was not a person who at the N N

time the decision was made was “liable to be detained”

O O (see section 36(1)(b)).

P P

(2) In any event, the conditions in the recognizance requiring

Q the Applicant to reside at a specified address and not to Q

leave Hong Kong Island (see paragraphs 2(11)(c) and (d)), R R

which I shall refer to as the “impermissible conditions”,

S could not be lawfully imposed. S

T T

U U

V V

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A A 5. The Applicant sought declarations to the effect that both the

decision to require the Applicant to enter into a recognizance in the first B B

place and that requiring him to be subject to the impermissible conditions

C C were unlawful.

D D

6. Chu J, after analyzing the legal effect of sections 19, 32 and 36

E of the Ordinance, held that the decision to require the Applicant to enter into E

a recognizance was lawful. As regards the imposition of the impermissible F F

conditions, the Judge accepted that they could not be lawfully imposed and

G accordingly made a declaration that these conditions were unlawful and of G

no effect. H H

I The appeal I

J J 7. The Applicant now appeals the decision of Chu J and seeks

effectively a declaration that the decision made by the Director to require the K K

Applicant to enter into a recognizance in the first place was unlawful. The

L L same two grounds relied on before Chu J were advanced before us. The

issues in the appeal can therefore be condensed into the following M M

questions : -

N N

(1) Did the Director of Immigration have any grounds under O O

section 36(1) to require the Applicant to enter into a

P recognizance? P

Q Q (2) If he did, did the existence of the impermissible conditions

R render his decision unlawful? R

S 8. Mr Philip Dykes SC, who appeared for the Applicant both in S

the Court below and before us, submitted, first, that the Director had no T T

U U

V V

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A A grounds to require the Applicant to enter into a recognizance and secondly,

even if he did, the imposition of the impermissible conditions rendered the B B

whole recognizance (and therefore the decision to require a recognizance)

C C invalid.

D D

9. Before dealing with these questions, I think it important first to

E set out the relevant statutory scheme. E

F F The statutory scheme

G G

10. For persons entering Hong Kong, permission is required to

H remain here unless that person comes within any of the situations set out in H

section 7 of the Ordinance. Permission may be refused at the point of entry I I

but for many visitors, permission will be given to enter and remain in Hong

J J Kong although conditions of stay (usually permission to remain for a limited

time and a prohibition on employment) will be imposed : c.f. section 11. It K K

will be recalled that the Applicant was given permission to land and allowed

L L to remain in Hong Kong (with several extensions) until late 2002 when a

further request for extension was refused. M M

N 11. Where a person does not have any permission to land or remain N

in Hong Kong, a removal order may be made against him. Section 19 of the O O

Ordinance states : -

P P

“19. Power to order removal

Q (1) A removal order may be made against a person requiring him Q

to leave Hong Kong -

R (a) by the Governor if it appears to him that that person is an R

undesirable immigrant who has not been ordinarily resident in Hong Kong for 3 years or more; or S S (b) by the Director if it appears to him that that person -

T T

U U

V V

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A (i) might have been removed from Hong Kong under A

section 18(1) if the time limited by section 18(2) had not passed; or B B

(ii) has (whether before or after commencement of the Immigration (Amendment) (No. 4) Ordinance 1981 C C (75 of 1981)) landed in Hong Kong unlawfully or is contravening or has contravened a condition of stay in

D respect of him; or D

(iia) not being a person who enjoys the right of abode in

E Hong Kong, or has the right to land in Hong Kong by E virtue of section 2AAA, has contravened section 42; or

(iii) being a person who by virtue of section 7(2) may not F F remain in Hong Kong without the permission of an

immigration officer or immigration assistant, has G remained in Hong Kong without such permission. G

(2) …..

H H (3) …..

(4) A removal order made against a person shall invalidate any I permission or authority to land or remain in Hong Kong given to that I

person before the order is made or while it is in force.

J (5) Where the Director makes a removal order he shall cause J

written notice to be served as soon as is practicable on the person against whom it is made informing him - K K

(a) of the ground on which the order is made; and (b) that if he wishes to appeal he must do so by giving to an L L immigration officer or immigration assistant written notice

of his grounds of appeal and the facts upon which he relies M within 24 hours of receiving the notice of the order. M

(6) In this section ‘Director’ ( 處長) means the Director of N N Immigration, the Deputy Director of Immigration or any assistant director of immigration.”

O O

In the case of the Applicant, section 19(1)(b)(ii) was relevant.

P P

12. In some cases, it may be relatively straightforward for the Q Q

Director to decide whether or not to make a removal order. In others, the

R position may be more difficult and the Director may need some time to R

conduct investigations when considering whether or not to make a removal S S

order. The range of possible situations in which investigations may be

T T

U U

V V

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A A required are so broad that they may require either comparatively little time or

in some cases, a lot of time. The Applicant’s position fell within the B B

latter : the evidence indicates that the CAT screening will be very time

C C consuming, particularly given the guidance provided by the Court of Final

Appeal in Prabakar . D D

E 13. Accordingly, the Ordinance nowhere sets out a time limit E

within which the Director of Immigration must complete his consideration F F

of whether or not a removal order should be made, although he must act at all

G times reasonably. G

H H 14. When the Director of Immigration is considering whether or

I not to make a removal order, he is given a number of options in dealing with I

the relevant person concerned. He can, for example, do nothing and simply J J allow that person to remain in Hong Kong subject to conditions of stay. But

K he is also empowered to detain that person if the circumstances so justify. K

Section 32 of the Ordinance deals with the question of detention pending L L removal. So far as relevant to the present case, it states : -

M M

“32. Detention pending removal or deportation

N N (1) …..

(1A) ….. O O

(2) ….. P P

(2A) A person may be detained pending the decision of the Director of Immigration, the Deputy Director of Immigration or any Q assistant director of immigration as to whether or not a removal Q

order should be made under section 19(1)(b) in respect of that person - R R

(a) for not more than 7 days under the authority of the Director of Immigration, the Deputy Director of S S Immigration or any assistant director of

immigration; T T

U U

V V

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A (b) for not more than a further 21 days under the A

authority of the Secretary for Security; and

B (c) where inquiries for the purpose of such decision B

have not been completed, for a further period of 21 days under the authority of the Secretary for C C Security, in addition to the periods provided under paragraphs (a) and (b).

D D (3) …..

(3A) ….. E E

(3B) …..

F F (3C) …..

G (3D) ….. G

(4) ….. H H

(4A) The detention of a person under this section shall not be unlawful by reason of the period of the detention if that period is I I reasonable having regard to all the circumstances affecting that

person's detention including, in the case of a person being detained J pending his removal from Hong Kong - J

(a) the extent to which it is possible to make

K arrangements to effect his removal; and K

(b) whether or not the person has declined

L arrangements made or proposed for his removal. L

(5) …..”

M M

15. Where the Director of Immigration is of the view that a person

N should be detained pending his consideration of whether a removal order N

should be ordered, section 32(2A) sets the maximum period of detention at O O

49 days. Of course, in exercising the powers under this provision, the

P P Director must be of the view that detention and the period of detention are

reasonable in the circumstances. This is an application of the Hardial Singh Q Q

principles : - see Tan Te Lam and Others v Superintendent of Tai A Chau

R R Detention Centre and Another [1997] AC 97, at 111; see also section 32(4A)

of the Ordinance. S S

T T

U U

V V

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A A 16. It was part of Mr Dykes’ submissions that somehow

section 32(2A) effectively imposed a 49-day time limit on the Director to B B

complete his consideration of whether a removal order should be made. And

C C if he could not complete the exercise by that time, he could not exercise the

power to detain in section 32(2A). D D

E 17. Where a person is detained or liable to be detained, the Director E

as an alternative to detention may require that person to enter into a F F

recognizance : - see section 36(1) of the Ordinance. Section 36 states : -

G G

“36. Recognizance as alternative to detention

H (1) An immigration officer and any police officer may H

require a person -

I (a) who is detained under section 27, 32 or 34; or I

(b) who, being liable to be detained under any of those

J sections, is not for the time being so detained, J

to enter into a recognizance in the prescribed form in such amount and with such number of sureties as the Director or such police K K officer may reasonably require; and where a person who is so

detained enters into such a recognizance he may be released. L L (2) A person may be detained under section 27, 32 or 34

notwithstanding that he has entered into a recognizance pursuant to a M requirement under subsection (1); and where such person is so M

detained otherwise than in consequence of or following a breach of the recognizance, the recognizance shall thereupon cease to have N N effect.

(3) If it appears to a magistrate on the application of the O Director that any person may become liable to be detained under O

section 32(2), the magistrate may order that person to enter into a recognizance in the prescribed form in such amount and with such P P number of sureties as he thinks fit.

(4) The magistrate may order any person who wilfully fails Q Q to comply with an order under subsection (3) to be imprisoned for 6

months. R R (5) A recognizance entered into pursuant to subsection (3) shall cease to have effect -

S (a) where the person who has entered into the S

recognizance has been detained under section 32(2); T T

U U

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A (b) where the person who has entered into the A

recognizance has a removal order or deportation order made against him; B B

(c) where it is decided that a removal order will not be made in respect of him; C C

(d) upon the expiration of 6 months from the date on which the recognizance was entered into or upon D D the expiration of the period for which the recognizance has been extended under

E subsection (6), E

whichever is the earlier.

F (6) A magistrate may, on application by the Director prior to F

the expiration of a recognizance entered into pursuant to subsection (3), extend the recognizance for such period not G G exceeding 6 months as the magistrate thinks fit.”

H H 18. Mr Dykes submitted that the effect of section 36(1) when seen

together with section 32(2A) was that even where detention or the I I

requirement of entering into a recognizance was reasonable, nevertheless the

J J maximum period for either measure was 49 days. In the case of a physical

detention, this is of course stipulated in section 32(2A) and there is no K K

controversy as to that. As regards the duration of a recognizance, Mr Dykes’

L L point really boiled down to this : since the imposition of a recognizance was

alternative to a detention (and indeed, a recognizance could not be required M M

unless a detention was in existence or justified), so there must be an exact

N N match between recognizances and detentions, particularly as regards the

O duration of either. The express reference made to sections 27, 32 and 34 O

when considering recognizances under section 36(1)) meant that the relevant P P time limits of detentions also applied to recognizances. This, he submitted,

Q was a process of necessary implication in the construction of these Q

provisions. R R

19. I am unable to agree with the Applicant’s submissions here. I S S

agree with Chu J’s analysis and would only make some additional points : -

T T

U U

V V

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A A (1) Nothing in section 36 stipulates a time limit for the

duration of recognizances granted by an immigration B B

officer or police officer.

C C

(2) There is also nothing in section 36, by necessary D D

implication or otherwise, that equates the system of

E recognizances to that in relation to detentions. In fact, one E

would have to say quite the contrary, as section 36 sets out F F

the system for recognizances in some detail and is quite

G different to that governing detentions. G

H H (3) One such difference can be found in the provisions of

I sections 36(3) to (6) where recourse may be had to a I

magistrate in ordering (on the application of the Director) J J a person to enter into a recognizance. In such a situation, it

K should be noted that the time limits of a recognizance can K

be much more than 49 days : - see section 36(5). L L

(4) As a matter of principle, there is no justification to regard a M M

detention and a recognizance in exactly the same way. A

N N detention involves a total deprivation of liberty. Whilst it

is true that a recognizance, by its reporting condition, O O

places some inhibition upon liberty, it is of a different

P P order altogether.

Q Q

(5) In effect, Mr Dykes was saying that where the Director

R was considering whether or not to make a removal order, R

he could not require the person to enter into a recognizance, S S

however justified, even on grounds, say, of security and

T T

U U

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A A however extensive his enquiries may have to be (as in the

case of the Applicant), beyond 49 days. He would B B

effectively be confined to a period of 49 days within which

C C to consider and decide on the making of a removal order.

In many cases, I daresay, this might well result in D D

unfortunate consequences and even bad administration

E E (for example, removal orders being determined too

F quickly in the absence of proper investigations). As a F

matter of commonsense and principle, this must be wrong.

G G As stated above, nothing in section 36 (unlike

H section 32(2A)) stipulates any time limit. I ought finally to H

add in this discussion that I have read in draft the I I observations of Stock JA. I fully agree with them.

J J

20. I now deal with the two questions raised in the present appeal.

K K

Did the Director of Immigration have any grounds under section 36(1) to L require the Applicant to enter into a recognizance? L

M 21. In my view, the answer is Yes. M

N N 22. The Applicant’s position was that the Director did not have any

O grounds to require him to enter into a recognizance. According to Mr Dykes, O

section 36(1)(a) was not engaged since at the relevant time, the Applicant P P was not in detention (as stated above, although a detention order had been

Q made on 28 September 2004, this was never carried out : see paragraph 2(9) Q

above). This was of course correct. As for as section 36(1)(b), he submitted R R that the Applicant was not a person who was “liable to be detained”.

S S

T T

U U

V V

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A A 23. Mr John Bleach SC (for the Respondent) said that the Director

did not seek to rely on section 36(1)(a) but submitted that the Applicant was B B

a person who was “liable to be detained” for the purpose of section 36(1)(b).

C C This subsection therefore became the focus of the arguments.

D D

24. Mr Dykes advanced two separate arguments to support the

E Applicant’s case : - E

F F (1) The Applicant was not liable to be detained because at the

G time of the relevant decision, the Director must have G

realized that the CAT screening would take more than 49

H H days to complete. It followed accordingly that given the

I time limit of 49 days for both orders of detention and I

recognizance, the Director could not reasonably have J J utilized section 36 in requesting the Applicant to enter into

K a recognizance. In other words, no order under K

section 36(1) could reasonably be made when the Director L L knew full well it would take more than 49 days to consider

M whether or not a removal order should be made against the M

Applicant. To exercise the power in such circumstances N N

was unreasonable.

O O

(2) Next, Mr Dykes argued that the Applicant was “liable to

P P be detained” under section 32(2A) of the Ordinance (the

only provision relied on) only if the Director was Q Q

considering whether a removal order should be made.

R R According to him, in the present case there was no

S possibility of the Director even considering the making of S

a removal order until the CAT screening had been T T

U U

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A A completed. The making of a removal order was such a

distant possibility well beyond the 49 days stipulated in B B

section 32(2A) that it would simply not have been

C C reasonable to detain the Applicant.

D D

25. I am unpersuaded by these arguments : -

E E

(1) I have already dealt with the Applicant’s arguments that

F F the 49 days specified as the maximum period of detention

G under section 32(2A) is also the maximum period for the G

duration of any recognizance that may be required to be

H H entered into : - see paragraph 19 above. This disposes of

I the first of these points. I

J J (2) As for the second argument, it is quite clear on the facts

that the Director of Immigration was at the time he made K K

his decision considering making a removal order against

L L the Applicant. The correspondence passing between the

Director, the Department of Justice and the Applicant and M M

his solicitors amply supports this conclusion. The

N N Applicant was a person who had breached his conditions

of stay by exceeding the time that he was permitted to O O

remain in Hong Kong. But for the torture claim and the

P P CAT screening, he might well have been removed. Far

from the Director only beginning to consider whether or Q Q

not a removal order should be made once the CAT

R R screening has been completed, it is more likely that the

S Director will actually make his decision when this process S

T T

U U

V V

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A A is completed. I can do little better perhaps than to repeat

what Chu J said in her judgment in this context : - B B

C “The truth of the matter is the applicant has since C

October 2003 been an overstayer. He was to be removed under section 19(1)(b), but was not removed because of his D torture claim. Under section 32(1A) and (2A), he may be D

detained pending the decision as to whether a removal order should be made. The Director had further on E E 28 September 2004 ordered that he be detained under

section 32(2A) pending the decision on whether a removal F order should be made. Thus viewed, the applicant must be F

a person liable to be detained when he was put on recognizance on 23 October 2004. The power under G G section 36 was therefore properly engaged.”

H H (3) I would finally add that even if it were the case (which I do

not accept) that the Director might somehow be said to I I

have acted improperly by seeking to detain the Applicant

J J when he knew that the CAT screening process would take

longer than 49 days, this would still make the Applicant K K

“liable to be detained” for the purposes of section 36(1)(b) .

L L In other words, the power to detain is there even though it

M may not be a proper exercise of power to detain him : - see M

R (Khadir) v Secretary of State for the Home Department

N N [2005] 3 WLR 1, at paragraphs 4 and 31. I do not in any

O event accept it would be an improper exercise of power for O

the Director to have detained the Applicant even though he P P knew that the CAT screening process (and therefore his

Q consideration of a removal order being made) would take Q

more than the maximum 49 days detention he could R R impose. If there existed good grounds to detain, then this

S decision would be justified, even though the maximum S

period of detention was 49 days. T T

U U

V V

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A A 26. I now move on to the second question.

B B

If he did, did the existence of the impermissible conditions render the Director’s decision unlawful? C C

27. It is common ground that the impermissible conditions were D D

conditions that could not be lawfully imposed on the Applicant as part of the

E recognizance he entered into. Chu J reasoned that by the reference in E

section 36(1) of the Ordinance to the Director being empowered only to F F

require a person to enter into a recognizance “in the prescribed form”, the

G G limits of the conditions that could be imposed on a person were those

stipulated in the prescribed form. Any other conditions could not be H H

lawfully imposed. Form 8, which is the prescribed statutory form, makes a

I I reference only to the amount and number of sureties, and reporting

requirements. With respect to the Judge, her reasoning is impeccable and J J

cannot be faulted.

K K

28. Chu J was prepared, however, only to make a declaration that L L

the impermissible conditions were of no legal effect. The Applicant was not

M content with this and sought a declaration that by reason of the existence of M

the impermissible conditions, the whole of the Director’s decision to require N N

him to enter into a recognizance in the first place was unlawful. This was the

O order that the Applicant sought in his Notice of Appeal. O

P P 29. Reliance was placed by Mr Dykes on section 37(1) of

Q Interpretation and General Clauses Ordinance, Cap.1 which states : - Q

R “37. Forms R

(1) Where any form is prescribed by or under any Ordinance, S S deviations therefrom, not affecting the substance of such form, shall

not invalidate it. T T

U U

V V

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A A

(2) …..”

B B

30. The Judge having held that the impermissible conditions were

C more than just deviations, it therefore followed that the recognizance as a C

whole was rendered invalid. D D

E 31. I doubt this to be the effect of section 37 at all and Mr Dykes E

seemed to have accepted the proposition that where there were deviations in F F a statutory form that were substantial, this did not necessarily mean that the

G whole document was automatically invalidated. Much depends on the G

context of course. In a sense, the document was invalid inasmuch as the H H

impermissible conditions were imposed but the effect was simply that the

I document took effect without those conditions. As Mr Bleach submitted, I

there is no reason why the existence of invalid conditions should render the J J

valid conditions also void. There is no practical or commonsense reason for

K this. Still less is there any justification to impugn as a whole the decision of K

the Director to require the Applicant to enter into a recognizance in the first L L

place. I agree with the Judge’s views contained in the following passage : -

M M

“That said, however, I consider that a distinction should be drawn

N between the decision to require the applicant to be put on N recognizance and the implementation of the decision, fine though the

line may appear to be. While the Director or his officer has no power O to include extra conditions in the recognizance, it is within his power O

to put the applicant on recognizance as an alternative to actual detention. The extra conditions attached to the recognizance are P P clearly void and of no effect, but that should not invalidate the

recognizance that the applicant had entered into.” Q Q

32. In the course of his submissions, Mr Dykes also made reference R R to the penal sanctions that could be imposed on a person by a magistrate

S where he failed to comply with an order to enter into a recognizance : - see S

sections 36(3) and (4) of the Ordinance. In my view, while it is one thing to T T

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由此 - 21 -

A A say that no criminal liability will attach where a magistrate orders a person to

enter into a recognizance with impermissible conditions, it is quite another to B B

conclude that the whole recognizance is void, not merely the impermissible

C C conditions or that the effect of these conditions is to render the decision to

require a recognizance to be entered into, wholly invalid. D D

E 33. In my view, this second question is to be answered No. E

F F Costs

G G

34. For the above reasons, the appeal should be dismissed. I would

H also make an order nisi that the costs of the appeal should be to the H

Respondent, such costs to be taxed if not agreed. I I

J Hon Stock JA : J

K K 35. I agree with the judgment of the Chief Judge. The argument

that the power to impose a recognizance may last only so long as the L L

maximum period prescribed for detention, is contrary to any purposive

M M construction of the relevant provisions. It would drive a coach and horses

through the scheme. All that a person seeking asylum – say, for present N N

purposes, a bogus claim – would have to do is to present a highly

O O complicated story to the authorities here, involving a number of different

countries and a host of suggested witnesses, of whom inquiries might have to P P

be addressed, and the scheme would be defeated. The effect of Mr Dykes’

Q Q argument is that for practical purposes it would impose upon the Director a

R need to complete his inquiries and make a decision within 49 days; for once R

he is disempowered even to require a recognizance, he has no control over

S S the applicant’s movements whatsoever. But a decision in that time may be

T impossible and contrary to the claimant’s interests; and we cannot read such T

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由此 - 22 -

A A a requirement into the scheme. If that had been intended the legislature

would have said so. And if at the outset of a particular exercise relating to a B B

particular claimant for refugee status it is apparent that the inquiries are to

C C take longer than 49 days, especially if they are to be fair to the claimant,

what then? According to Mr Dykes’ argument, the Director should not in D D

such circumstances detain, let alone seek a recognizance, because the

E E detention would be for a purpose outwith that authorized. But what if the

F Director following this line of thought, then releases the claimant only to F

find two days later that there is irrefutable evidence that the claim is bogus

G G but the claimant has melted into the population and cannot be found: the

H result is a power of control rendered nugatory on the basis of a wrong H

estimate of the likely length of the inquiry. None of this makes practical I I sense and cannot have been intended. The power to order a recognizance is

J not, as was argued, a power auxiliary to detention. It is simply one course J

amongst others that can be taken. K K

Hon Yeung JA : L L

M 36. I agree with the judgment of the Chief Judge and Stock JA. I M

have nothing to add. N N

O O

P P

Q Q

R R

S (Geoffrey Ma) (Frank Stock) (Wally Yeung) S

Chief Judge, High Court Justice of Appeal Justice of Appeal

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由此 - 23 -

A A

B B

C C

D D

Mr Philip Dykes SC instructed by Messrs Barnes & Daly for the Applicant E E

Mr John Bleach SC instructed by the Department of Justice for the Respondent F F

G G

H H

I I

J J

K K

L L

M M

N N

O O

P P

Q Q

R R

S S

T T

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V V