Lee Bun v Director of Immigration
| Date | 29 June 1990 |
| Court | Court of Appeal (Hong Kong) |
(Sir Derek Cons, Vice-President; Clough and Penlington JJA)
Aliens Political asylum Geneva Convention Relating to the Status of Refugees, 1951 Convention ratified by the United Kingdom but not extended to Hong Kong Whether Convention part of the law of Hong Kong
Human rights Right to life Due process International Covenant on Civil and Political Rights, 1966 United Kingdom party to the Covenant Covenant extended to Hong Kong with reservation that Article 13 not applicable in Hong Kong Chinese illegal immigrants applying for political asylum Whether principles of natural justice apply Whether specific legislative provisions to override principles of natural justice
Sources of international law Customary international law Whether part of common law International migration law Whether principle of non-refoulement applicable where inconsistent municipal legislation
Treaties Application Colony Treaty ratified by United Kingdom but not extended to Hong Kong The law of Hong Kong
Summary: The facts:The applicants had left China by boat and entered Hong Kong illegally. When arrested they claimed refugee status on the basis that they had been involved in political protests in China in 1989 and feared persecution if they were returned to China. They were also wanted in China on serious charges of profiteering and fraud. Removal orders were made against them under the Immigration Ordinance. Their application for judicial review was dismissed. The applicants appealed on the ground that they had been deprived of their right to a fair hearing and that the removal orders were no more than extradition orders in disguise.
Held:The appeals were dismissed. (1) In view of the scheme of the Immigration Ordinance and the wording of Article 13 of the International Covenant on Civil and Political Rights, 1966, which was not applicable in Hong Kong, the litigants could not rely on the principle of non-refoulement as there were specific legislative provisions that, apart from Vietnamese refugees, those claiming political persecution were not to be accorded any special rights. In this case the Director of Immigration had received representations from the applicants and they were not entitled to a further hearing.
(2) The Geneva Convention Relating to the Status of Refugees, 1951, did not assist the appellants. Although the United Kingdom had ratified the Convention it had not been extended to Hong Kong and was not, therefore, part of the law of Hong Kong.
(3) The Legislature in Hong Kong had intended that, apart from Vietnamese refugees, those claiming refugee status on the basis of political persecution should not be accorded any special rights. The principle of natural justice could not be used to contradict the clear intention of the Legislature. Therefore, the applicants were not entitled to an additional hearing to the opportunity of representation they had already received.
(4) The view of the legal status of Hong Kong taken by the Government of the People's Republic of China explained why no use was made of the extradition procedure as laid down in the Chinese Extradition Ordinance which had not been used since 1935.
The following is the text of the judgment of the Court of Appeal delivered by Sir Derek Cons, Vice-President:
These are appeals from Sears, J. who, on 7th March this year, declined judicially to review Removal Orders made on 25th January by the Deputy Director of Immigration under powers granted to him by s. 19(l)(b)(ii) of the Immigration Ordinance (Cap. 115).
On 6th December last year the appellant Lee Ching Ming and his wife the appellant Lee Bun were arrested with others during a police investigation into a syndicate involved in the provision of forged travel documents. They told the police that they had entered Hong Kong illegally by boat from China some three months earlier, i.e. on 2nd September, and had hidden in various locations meanwhile; at the time of arrest they were awaiting forged Thai passports to enable them to leave Hong Kong.
On 10th December the appellants were interviewed by Immigration Officers to whom they
claimed that they had been involved in the recent political protests in China during the period April to June 1989 and that consequently they feared that they would be persecuted for political reasons upon being returned to China. In the course of the next few weeks this claim was the subject of detailed examination and scrutiny by immigration department and security branch officials. It appeared to the officials concerned that there were material shortcomings and suspected fabrications in their account, more particularly in Mr. Lee's account of his alleged medical qualifications and experience, the applicants' claimed involvement in the student movement and protests, and their failure to adequately account for the large sums of money in their possession.
In the light of those conclusions the Deputy Director made the orders just mentioned. With the leave of Mayo, J. the appellants challenged the validity of the orders by way of judicial review. Each filed an affirmation in support and the Deputy Director filed one affidavit dealing with the history of the Removal Orders and the appellants' subsequent appeals and...
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