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Ubamaka Edward Wilson v Secretary For Security And Another

Judgment Cited authorities 23 Cited in Precedent Map Related
Vincent
Judgment Date21 December 2012
Year2012
Citation(2012) 15 HKCFAR 743
Judgement NumberFACV15/2011
Subject MatterFinal Appeal (Civil)
CourtCourt of Final Appeal (Hong Kong)
FACV15/2011 UBAMAKA EDWARD WILSON v. SECRETARY FOR SECURITY AND ANOTHER

FACV No. 15 of 2011

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 15 OF 2011 (CIVIL)

(ON APPEAL FROM CACV NO. 138 OF 2009)

_____________________

Between :

UBAMAKA EDWARD WILSON Applicant
(Appellant)
- and -
SECRETARY FOR SECURITY 1st Respondent
(1st Respondent)
DIRECTOR OF IMMIGRATION 2nd Respondent
(2nd Respondent)
______________
Before : Chief Justice Ma, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Tang PJ and Lord Walker of Gestingthorpe NPJ
Dates of Hearing: 4 to 6 December 2012
Date of Judgment : 21 December 2012

________________________

J U D G M E N T

________________________

Chief Justice Ma:

1. Among other important issues, this appeal addresses the effect of s.11[1] of the Hong Kong Bill of Rights Ordinance Cap 383 (“HKBORO”) when seen against non-derogable and absolute rights contained in Article 3 of the Bill of Rights[2] (we are concerned only with the aspect of cruel, inhuman or degrading treatment or punishment). I am in agreement with the judgment of Ribeiro PJ and with the conclusion (on the facts) that the present appeal should be dismissed.

2. I wish only to emphasize one point in his judgment. The width of s.11 of HKBORO (preserving the effect of any immigration legislation governing entry into, stay in and departure from Hong Kong when generally seen against the Bill of Rights) must be qualified, as a matter of statutory interpretation, by what is contained in the other parts of that Ordinance. Reference is made in the judgment of Ribeiro PJ to s.5. The conclusion (in para 115 below) that s.11 “must be understood to exclude the application of HKBORO and BOR in relation to the exercise of powers and the enforcement of duties under immigration legislation regarding persons not having the right to enter and remain in Hong Kong except insofar as the non-derogable and absolute rights protected by BOR Art 3 are engaged”, is therefore a principled one, dependent on a true and purposive construction of the relevant statutory provisions. It is also consistent with an approach that recognizes the importance placed in Hong Kong on non-derogable and absolute rights. The approach of the respondents that a person (not having the right to be in Hong Kong) was liable to be deported to a place even where it could manifestly be demonstrated that he would be subject to cruel, inhuman or degrading treatment or punishment in that place, was a deeply unattractive submission.

Mr Justice Chan PJ:

3. I agree with the judgment of Mr Justice Ribeiro PJ and would like to add just a few words on the construction of s.11 of the BORO.

4. Section 2(2) of the BORO provides that the BOR is subject to Part III which includes s.11. Section 11 disapplies the BORO in the case of persons who have no right to enter and remain in Hong Kong, but this is restricted to the exercise of the Director’s powers and discretions under immigration legislation governing entry into, stay in and departure from Hong Kong.

5. One of the central issues in this case is the scope of this reservation. Notwithstanding the language of s.11, I do not accept that it can have the effect (as submitted by the Director) of denying persons having no right to enter and remain in Hong Kong all the rights under the BOR. Section 11 must be construed in its context, adopting a generous and purposive approach. (See Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4.)

6. The context relevant to the construction of s.11 includes the purpose and object of the BORO. This Ordinance was enacted for the purpose of implementing a treaty obligation by incorporating into the domestic law of Hong Kong the provisions of the ICCPR as applied to Hong Kong and is aimed at providing for the protection of these fundamental human rights, which are now entrenched by BL art 39. The relevant context also includes the other provisions in the BORO, in particular s.5, and the nature and substance of the rights which are to be affected.

7. Some of the rights protected by the BOR are, by reason of their nature and the consequence of their violation, absolute while other rights are, either expressly or by implication, susceptible to lawful restrictions which must satisfy the necessity and proportionality requirements. In the present case, we are only dealing with art 3 (the right to freedom from torture or cruel, inhuman or degrading treatment or punishment) which is absolute. In Soering v United Kingdom (1989) 11 EHRR 439, para.88, the European Court of Human Rights (having regard to art 15 of the European Convention on non-derogation) referred to art 3 of the European Convention (the equivalent of BOR art 3) as an “absolute” prohibition on torture, etc. Similarly, in R (Ullah) v Special Adjudicator [2004] 2 AC 323, para.40, Lord Steyn described this right as “absolute”. In the BORO, s.5 (which reflects ICCPR art 4 and the European Convention art 15) provides that art 3 (among other rights) is not derogable even in times of public emergency threatening the life of the nation. This highlights the importance of art 3 as an absolute and non-derogable right. In my view, this is a very material consideration in the construction of s.11.

8. Thus, when s.11 is construed in its context, I do not believe that it could have been the intention of the legislature that persons having no right to enter and remain in Hong Kong, while undoubtedly subject to immigration controls, would, by s.11, be deprived of the absolute right under art 3 which is also stated as non-derogable under s.5. Such a construction would be contrary to the purpose and object of incorporating ICCPR into our domestic law and incompatible with s.5.

9. I should add that it does not necessarily follow from the conclusion that s.11 does not preclude reliance on art 3 by persons having no right to enter and remain in Hong Kong that persons within this category can rely on the other rights which are also stated as non-derogable under s.5(2). There can be reasons for their inclusion in s.5(2) (e.g. art 7 may be considered as irrelevant to the legitimate control of the state of national emergency and art 15 as impossible for derogation, see General Comment No. 24). Whether these persons can rely on these other rights notwithstanding s.11 has to be decided according to the circumstances of each case.

Mr Justice Ribeiro PJ :

10. This appeal raises important issues concerning the constitutional validity, scope and effect of the reservation concerning immigration legislation contained in section 11 of the Hong Kong Bill of Rights Ordinance[3] (“HKBORO”). In particular, it raises issues regarding the effect of that reservation in relation to those articles of the Bill of Rights (“BOR”) which provide protection against double jeopardy and against cruel, inhuman or degrading treatment or punishment. The appellant seeks to challenge the validity of a deportation order made against him, invoking those rights.

A. The course of events

11. On 11 December 1991, the appellant, a Nigerian national, travelled to Hong Kong from Nepal and was arrested at the airport for drug trafficking. He was then aged 27. He was convicted and sentenced to 24 years’ imprisonment.

12. While serving his sentence, he unsuccessfully made several applications to the Hong Kong and British Governments to be allowed to serve his sentence in Nigeria. However, in 1998 he desisted when he learned of a new law in Nigeria, namely, section 22 of the National Drug Law Enforcement Agency Act (“the Nigerian law”),[4] which provides as follows:

(1) Any person whose journey originates from Nigeria without being detected of carrying prohibited narcotic drugs or psychotropic substances, but is found to have imported such prohibited narcotic drugs or psychotropic substances into a foreign country, notwithstanding that such a person has been tried or convicted for any offence of unlawful importation or possession of such narcotic drugs or psychotropic substances in that foreign country, shall be guilty of an offence of exportation of narcotic drugs or psychotropic substances from Nigeria under this subsection.

(2) Any Nigerian citizen found guilty in any foreign country of an offence involving narcotic drugs or psychotropic substances and who thereby brings the name of Nigeria into disrepute shall be guilty of an offence under this subsection.

Persons convicted are made liable to imprisonment for a term of five years without option of a fine and their assets made liable to forfeiture.

13. On 5 July 1999, the Secretary for Security (“the Secretary”) issued a deportation order against the appellant under section 20(1)(a) of the Immigration Ordinance.[5] Although no destination is specified, it is clear that deportation under the order would be to Nigeria.

14. As the date of his release neared, the appellant applied on 7 September 2006 to the United Nations High Commissioner for Refugees in Hong Kong claiming refugee status, citing fear of being subjected to double jeopardy by prosecution under the Nigerian law. His application was rejected in December 2007. In March 2007, he also lodged a claim under the Convention Against Torture which is being separately pursued.

15. On 27 December 2007, the appellant was released from prison for good behaviour after having served two-thirds of his sentence. He was, however, immediately placed in administrative detention under section 32 of the Immigration Ordinance...

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