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CACV138/2009
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 138 OF 2009
(ON APPEAL FROM HCAL NO. 77 OF 2008)
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BETWEEN
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UBAMAKA EDWARD WILSON |
Applicant |
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and
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THE SECRETARY FOR SECURITY |
1st Respondent |
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THE DIRECTOR OF IMMIGRATION |
2nd Respondent |
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Before : Hon Stock VP, Andrew Cheung and Fok JJ in Court
Dates of Hearing : 11 and 12 October 2010
Date of Handing Down Judgment : 19 November 2010
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J U D G M E N T
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Hon Stock VP :
1. I have had the advantage of reading in draft the judgment of Fok J. I agree with it and with the orders which he proposes.
2. His judgment includes an analysis of the phrase “as applied to Hong Kong” as used in article 39 of the Basic Law, an analysis which is perhaps overdue since the phrase has periodically been the subject of some misunderstanding by advocates and in this case, there has been an attempt further to limit its meaning. I wish to add a word about the issue because it is one that now deserves some emphasis.
3. The phrase in article 39 “the provisions of the International Covenant on Civil and Political Rights… as applied to Hong Kong” has sometimes been assumed to mean “as applied to Hong Kong by the Hong Kong Bill of Rights Ordinance.” In this case, various other suggestions have been made, with which Fok J deals in detail, including one that would have us read it as saying “as lawfully applied to Hong Kong”, with “lawfully” to be adjudged according to international law. An implication of that argument, or perhaps a variation on the theme, is that “applied to Hong Kong” means as applied by international law or, possibly, as determined by the Human Rights Committee of the United Nations to apply to Hong Kong.
4. It means none of those things. It means, rather, the ICCPR as applied to Hong Kong by the Government of the United Kingdom in 1976, and as intended to remain in force in relation to Hong Kong after 1 July 1997 by reason of the PRC’s Communication of 20 June 1997 to the Secretary General of the United Nations.
5. The background to the application of the ICCPR to Hong Kong is provided in a footnote by Professor Yash Ghai in Hong Kong’s New Constitutional Order, 2nd ed., p. 406 :
“The UK did not have the option to exclude its dependencies from the application of the ICCPR, as unlike some other treaties, there is no provision for the exclusion of any territories under a state party’s jurisdiction. Article 1 requires each signatory state to ensure rights to ‘all individuals within its territory and subject to its jurisdiction’. This provision was reinforced by a resolution of the General Assembly that the covenant would be equally applicable to a signatory metropolitan state and all the territories administered or governed by it. …
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On the other hand, it was then accepted that a state could modify the ICCPR in relation to a territory through reservations, for, there being no special provision on reservations, general principles of international law were deemed to apply … Reservations were used by the UK to temper the covenant to its perception of the realities, and the future development, of Hong Kong.” (emphasis added).
6. Professor Yash Ghai then goes on, at p. 407, to record the fact that “Britain applied the ICCPR to Hong Kong with a number of reservations.”
7. What we see, therefore, is that the Covenant was applied to Hong Kong by no organisation or entity other than the state then exercising sovereignty over Hong Kong and was applied with reservations determined, and determined only, by that state.
8. Whatever view might be taken by the Human Rights Committee or by commentators on the validity or desirability of a reservation thus applied, the phrase “as applied to Hong Kong” which we see in article 39 is a phrase that falls to be determined in the context of a domestically binding constitution and is to be interpreted in accordance with the meaning intended by that constitution.
9. It is true that the Hong Kong Bill of Rights Ordinance gave domestic effect to the ICCPR. But it gave domestic effect to the ICCPR as already applied to Hong Kong, which is why the Ordinance reflects reservations adopted by the Government of the United Kingdom about 15 years prior to its enactment. As Fok J points out, “the ICCPR as applied to Hong Kong” was, as a matter of law, a concept born well before the Hong Kong Bill of Rights Ordinance, as evidenced by the terms of the Sino-British Joint Declaration 1984 and of the Basic Law promulgated in 1990 — each of which referred to “the International Covenant on Civil and Political Rights as applied to Hong Kong.” By the same token, the phrase “as applied to Hong Kong” in the amendment made in 1991 to the Letters Patent — providing that the provisions of the ICCPR “as applied to Hong Kong” were to be implemented through the laws of Hong Kong and that laws made after the amendment were not to be inconsistent with the ICCPR as thus applied — was no more and no less than a reference to the UK’s application of the ICCPR to Hong Kong, and carried none of the limitations which are said in this case to apply to that phrase. Even though the date of that amendment was the same as the date upon which the Bill of Rights Ordinance came into effect, that phrase in the Letters Patent was not an allusion to that Ordinance.
10. So too, in referring to the ICCPR “as applied to Hong Kong”, the Basic Law did not contemplate that as a reference to the Bill of Rights Ordinance; and it did not contemplate the qualifications to that phrase which have been advocated in this appeal. It contemplated it as a reference to the application, with reservations, in 1976 of the ICCPR by the Government of the United Kingdom to Hong Kong (subject to such modifications if any as may by the time of the Basic Law’s promulgation have been made), and it contemplated the continued application of that Covenant to Hong Kong beyond 1 July 1997, upon proper authorisation by the Government of the PRC, with those reservations.
Hon Andrew Cheung J :
11. This appeal raises some important issues. Amongst them is the one concerning the meaning of the important phrase “as applied to Hong Kong” in article 39(1) of the Basic Law. Its proper interpretation provides a good illustration of the well-established principle of constitutional interpretation that provisions in the Basic Law must be interpreted in the light of, amongst other things, their historical context. This issue arises in the context of a challenge, which carries significant implications, against the validity of the “immigration reservation” made by the UK Government when it ratified the International Covenant on Civil and Political Rights (ICCPR) and applied it to Hong Kong in 1976, and of section 11 of the Hong Kong Bill of Rights Ordinance (Cap. 383) which (in my view) reflects at the domestic level the immigration reservation, particularly where a guaranteed right that is said to embody or mirror a preemptory norm of customary international law is engaged. The key to determining these questions of validity lies, to a significant extent, in a proper understanding of the phrase “as applied to Hong Kong” in article 39(1) and of how that article works at the constitutional level to give effect to and, at the same time, to delimit the application of, the ICCPR in the domestic courts. For the very thorough reasons given both by Stock VP and by Fok J in their judgments on these and the many other issues raised in this appeal with which I entirely agree, I would also allow the appeal to the extent indicated at the end of Fok J’s judgment and make the costs order nisi he proposes.
Hon Fok J :
A. Introduction
12. For the reasons given in his Judgment dated 5 May 2009, Reyes J quashed a Deportation Order issued against the applicant, Mr Edward Wilson Ubamaka, and also declared that the applicant’s administrative detention pending removal from 29 December 2007 until 23 August 2008 was unlawful. This appeal, by the Secretary of Security and the Director of Immigration respectively, seeks to reinstate the Deportation Order and, although it is accepted that the declaration of unlawfulness in respect of the administrative detention is correct, to challenge part of the Judge’s basis for that declaration.
13. Since the applicant below is the respondent to this appeal and the respondents below are the appellants in this Court, I shall, to avoid confusion, refer in this Judgment to Mr Ubamaka as “the applicant” and to the Secretary of Security and the Director of Immigration as “the Secretary” and “the Director” respectively and, collectively, as “the appellants”.
B. Background facts
14. The applicant, a Nigerian national, entered Hong Kong from Nepal on a Nigerian passport on 11 December 1991. He was arrested for possession of dangerous drugs when he tried to clear customs at the airport. He was charged with the offence of trafficking in a dangerous drug and, after trial, was convicted of this offence on 24 February 1993. He was sentenced to a term of imprisonment of 24 years.
15. On 5 July 1999, a deportation order was made by the Secretary against the applicant requiring him to leave Hong Kong and prohibiting him from being in Hong Kong at any time thereafter. On 6 July 1999, the Principal Assistant Secretary (Security) authorised the detention of the applicant under section 32(3) of the Immigration Ordinance pending his removal.
16. During the course of his imprisonment, the applicant made a number of applications to the Hong Kong and British Governments to be repatriated to Nigeria to serve the remainder of his prison...
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