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""F"" v Director Of Immigration

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
CourtCourt of Appeal (Hong Kong)
Judgment Date18 July 2008
Judgement NumberCACV315/2007
Subject MatterCivil Appeal
CACV000314A/2007 ‘A’ v. DIRECTOR OF IMMIGRATION

CACV 314/2007 & CACV 315/2007 &
CACV 316/2007 & CACV 317/2007

CACV 314/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 314 OF 2007

(ON APPEAL FROM HCAL NO. 100 OF 2006)

----------------------

BETWEEN
‘A’ Applicant
and
DIRECTOR OF IMMIGRATION Respondent

----------------------

AND

CACV 315/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 315 OF 2007

(ON APPEAL FROM HCAL NO. 11 OF 2007)

----------------------

BETWEEN
‘F’ Applicant
and
DIRECTOR OF IMMIGRATION Respondent

----------------------

AND

CACV 316/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 316 OF 2007

(ON APPEAL FROM HCAL NO. 10 OF 2007)

----------------------

BETWEEN
‘AS’ Applicant
and
DIRECTOR OF IMMIGRATION Respondent

----------------------

AND

CACV 317/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 317 OF 2007

(ON APPEAL FROM HCAL NO. 28 OF 2007)

----------------------

BETWEEN
‘YA’ Applicant
and
DIRECTOR OF IMMIGRATION Respondent

----------------------

and

(HEARD TOGETHER)

Before: Hon Tang VP, A Cheung J and Barma J in Court

Date of Hearing: 18 July 2008

Date of Further Judgment: 18 July 2008

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FURTHER JUDGMENT

------------------------------

Hon Tang VP:

1. In our judgment we said that we were minded to declare that the detention of the applicants were unlawful after the making of the convention claims. We also said that because we have heard no submissions on the wording of the actual declaration we should made, we would invite the parties to provide an agreed wording for the court’s consideration. But after notice that our judgment would be handed down today was given, we were notified by the Department of Justice that the Director of Immigration (“the Director”) may make some consequential applications upon the handing down of the judgment. They asked the court if it could reserve 30 minutes for counsel for the Director to be heard in respect of such consequential applications, if necessary, shortly after the handing down of the judgment or at such earliest opportunity as they could be accommodated. Accordingly we notified the parties that we would hear counsel for the Director at 3.30 pm.

2. At the hearing, we were told by the parties that they have agreed the terms of the order which appeared on the document which has been handed up to us. I will not read out the terms of the declaration.

3. Mr. Anderson Chow, SC, appearing for the Director, asked for an interim stay of the effect of our judgment, pending an intended application for leave to appeal to the Court of Final Appeal. We were told that there are at the moment 387 persons who are subject to immigration detention under various sections of the Immigration Ordinance, Cap.115 (“the Ordinance”), amongst them 139 persons are torture claimants. Although our judgment only concerns the detention of persons who have made a torture claim, Mr Chow submitted that our judgment may have implications for all persons detained under the Ordinance particularly if they were detained under section 32. We were also told that unless the effect of our judgment is suspended pending appeal, it may be that persons who would pose a danger to our society will have to be released. But to our relief, we were also told by Mr Tam Yun-keung, an acting Assistant Principal Immigration Officer, in his intended affirmation, that since the hearing before us on 17 June 2008, the Director in consultation with the Secretary for Security, has reviewed his criteria on detention or recognizance. He has decided to begin implementation of the procedures which has been set out in some detail in his draft affirmation. It seems to be the Director’s case that when these procedures are implemented, it could be said that the policy and procedure for the detention of persons under section 32 of the Ordinance would comply with Article 5 of Hong Kong Bill of Rights. However, we are told that there is the practical problem of making the new policy accessible to the detainees.

4. Mr Philip Dykes, SC, for the applicants, submitted that no order staying the effect of our judgment should be granted. Nor would it have any effect since in the event of an application by any of the detainees for a writ of habeas corpus, a first instance judge would be bound by our decision. I have said that Mr Chow has asked that the effect of our judgment be suspended pending the intended application for leave to appeal, but he also mentioned during his oral submissions that the Director wished the declarations themselves to be suspended. But suspending the declaration will not suspend the effect of our judgment, so it is understandable why Mr Chow seemed to have acknowledged in his carefully prepared written submission that he is really asking us for...

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