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Colony can legislate freely, even to the extent of altering the common law and such statutes of the Imperial Parliament as have not been made applicable to the Colony by express words or necessary intendment. This is laid down by the Colonial Laws Validity Act, 1865, which provides, by s. 3, that no Colonial Law shall be inoperative on the ground of repugnancy to the law of England, unless repugnant to a statute so made applicable, or to some order or regulation made under it.
The real question on the appeal is whether the order made against the appellant conformed to the procedure directed by the Ordinance itself. If it cannot be shown to have been in conformity with these provisions, interpreted with the strictness which is required where the liberty of a British subject is con- cerned, the deportation cannot be justified. Their Lordships have therefore in the first place to turn to the language of the Ordinance, and then to consider how it was applied to the facts in the case.
The Ordinance, which was passed on the 12th October, 1917 followed on previous Ordinances directed to the same general purpose, the exclusion and removal from the Colony of undesir able persons. It is not surprising that for the mixed and varying population of Hong Kong power to effect this purpose should have been thought desirable. The legislation discriminates between foreign and British subjects, but it covers in different forms both classes. Under Section 3, the Governor in Council may summarily issue a deportation order against any person who commits the offence of being in the Colony in breach of a previous deportation order, whether he be a British subject or not. In the case of anyone who, in the opinion of the Governor in Council, is not a British subject, and who has been convicted of an offence in the Colony, he also may be summarily deported, and so may any one not being, in the opinion of the Governor in Council, a British subject, and being in the Colony during the continuance of any proclamation issued under the Peace Preservation Ordinance, 1886, whom the Governor in Council thinks it desirable in the public interest to deport. The procedure prescribed for the classes of case to which Section 4 of the Ordinance relates, are not to apply to cases falling under Section 3, the deportations under which are obviously intended to fall within the adminis- trative powers of the Government, and not to be matters requiring, as under Section 4, a semi-judicial procedure.
Section 4 is different in its character. It provides for the issue of a deportation order if, after an enquiry to be made in a prescribed fashion, the Governor in Council is of opinion that such an order should issue. When the Governor thinks that there are reasonable grounds for enquiry as to whether any person should be deported, he may issue a warrant for his arrest and detention for not more than six days. As soon as conveniently may be after the arrest, the Secretary for Chinest Affairs, or one of the other officers specified, is to interview the person so arrested,
and is to ask him certain prescribed questions, and to record his answers, to be signed by him if he is willing to do so.
The report
of the answers is to be transmitted to the Colonial Secretary of the Colony. The only one of the questions prescribed that
is material for the present purpose is the fourth. It is in a form that begins by setting out what is alleged against the person arrested, and it goes on to ask him whether he has anything to say in answer to the charge, or any reason to give why he should not be deported. When the answer to this question is trans- mitted with the other answers to the Colonial Secretary, it is
to be accompanied by the reports on which the allegations, the subject of this fourth question, were based. By Section 7, the deportation order is to state the grounds on which it is made, and the period during which it is to apply. By Section 13, the decision of the Governor in Council, as to whether any person
is liable to deportation, is to be final and conclusive for all pur- poses. It is obvious, however, that this provision can only apply if the terms of the Ordinance have been complied with. By Section 14, a report is to be made to the Imperial Secretary of State on the making of any deportation order against a British subject.
Sub-section 14 of Section 4 is important, for it provides that the provisions of Section 4 are not to apply at all in the case of a British subject, unless he is (a) a person who in the opinion of the Governor in Council has been guilty of **
any criminal offence, or of any other misconduct, connected with the prepara- tion, commencement, prosecution, defence or maintenance of any legal proceeding, or the sharing in the proceeds thereof, or the settlement or compromise thereof, or the obtaining a preparation of evidence in anticipation thereof or in relation thereto." There are two other subheads (b) and (c) in the sub- section, which relate to and include offences committed by British Subjects in relation to bankruptcy and analogous matters, and to the registration of documents, but neither of these sub- heads is material in the present case.
The appellant, who was a natural born British subject, had been employed as Government interpreter in the Police and Supreme Courts for many years. He subsequently entered the service of solicitors practising in the Colony, On the 2nd November, 1917, the Governor made an order for his arrest and detention for six days. On the 21st December, the appellant brought the action out of which this appeal arises. On the 15th January, 1918, the Governor in Council made an order under Section 4 (sub-section 11) of the Ordinance prohibiting the appellant from being within the Colony for the space of fifteen years. The grounds on which this order was made were stated in accordance with Form 7, as required by Section 4 (7), to be that the appellant had made a practice of champerty, the institution of fraudulent claims, the preparation of false evidence, the improper exploitation of litigants, and the
(1949---7)
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