294
THE HONG KONG WEEKLY PRESS &
DEPORTATION
ORDER
S.C.A. EXAMINATION OF TWO ANNAMITES NOT REGULAR.
WOMAN DISCHARGED BY THE COURT: APPLICATION
FOR COSTS AGAINST CROWN.
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When the case of Sung Man Cho and his niece, Li Sam, was resumed at the Supreme Court on August 20, it was vealed that a fresh deportation order was served on Sung Man Cho after the Court had risen on Saturday afternoon. Mr. Jen- kin criticised this procedure, pointing out that a fresh deportation order cculd not affect the position as it stood on Saturday afternoon, and what was unlawful could not made good by a step taken after it.
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The Chief Justice (Sir Joseph Kemp), with whom was associated the Puisne Judge (Mr. Justice Lindsell), held that the original deportation order was bad in the case of the woman and directed her discharge. Mr. Jenkin immediately applied for payment of costs and the point was reserved after argument.
VALIDITY OF NEW ORDER QUESTIONED.
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On the case being resumed, the Attorney General (the Hon. Mr. C. G. Alabaster, K.C. stated that he was unable to
his carry guments any further since their Lordships had decided on Saturday that the deportation order issued could not stand owing to the form of questions asked by the official from the Secretariat for Chinese Affairs. The upsetting of the de- portation order would not affect Li Sam, who was free to leave the Colony, and in fact had more time in which to go.
Mr. Justice Lindsell observed that there was no evidence that proper questions were put to Li Sam.
Mr. Jenkin: We have not gone into that yet.
Mr. Alabaster, continuing, said that in the case of Sung Man Cho, a summary order has been made and that the man was now held under a deportation order similar in wording to the old one. He
read an affidavit by Sub-Inspector Carey showing that the order was served on Sung Man Cho last Saturday.
The Chief Justice: We are not concerned with this order in these proceedings except as to the form of our order in the application.
them, tried to make good the cus- tedy by a fresh deportation order. It cannot affect the position as it stood on Saturday afternoon, and if it was unlawful then it cannot be made good by a step taken after it. I suggest that the better course would be to order the discharge of this man on the present applica- tion and I undertake to institute this afternoon fresh proceeding to test the validity of the new order.
Counsel added that, if for the sake of greater convenience it was
decided to deal with the new order as part and parcel of the present proceedings, he should be given the opportunity to file the necessary affidavits and deal with the matter further at a subsequent hearing. He was quite prepared to state briefly what his case would be in regard to the new order, and to elaborate it, to some extent, subject tc their Lordships allowing him to call further evidence on the point of the new order.
Mr. Alabaster expressed agree- ment with the request for more time to deal with the matter.
Mr. Jenkin pointed out that once a man was discharged on a writ of habeas corpus he could not be ar- rested again for the same offence. At a later stage Mr. Jenkin said that the holding of the applicant under the now order was invalid, and that it was an entire abuse of habeas corpus process.
Mr. Alabaster explained that the applicant, on the day of the order nisi, was held on a detention war- raut dated July 30, and there were subsequent warrants issued as each one expired and finally the de- portation order. To that extent he would say that the new deporta-against the man. tion order was good.
Mr. Jenkin said that his posi- tion was not certain and he asked if the Attorney General would m- form him when the new order had been served, because the Court was sitting on Saturday. Counsel was informed that the order was served after the Court rose on Saturday.
Sympathy Against Crown, Mr. Jenkin: The position is that the Crown, feeling that the sympathy of the Court was against
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Asked for his views, Mr. Alabas- ter said that he was still shewing cause against the woman, but not
After discussion, Mr. Jenkin agreed with their Lordships that the proper course to adopt would be to fake it that the Attorney General was still showing cause by producing another deportation or- der.
Woman Discharged.
The Chief Justice, having read to the Court the notes (appended below) he had made on Saturday as to why he considered the origin al deportation order to be bad in
[August 28, 1931
the case of the woman, ordered the discharge of Li Sam, who left the dock to take a seat near Mr. Lose- by, solicitor instructing Mr. Jen-
kin.
Mr. Jenkin, raising the question of costs in regard to the woman, said that he hoped their Lordships' order would be coupled with an order for payment of costs. Coun- sel said that the practice in Eng- land in cases of habeas corpus, where it was left to the discretion of the Court to order the payment of costs, was applicable here. The practice at Home under the Ad- judicature Act has been to make an order to give a successful ap- plicant the costs of the proceedings. Counsel quoted a case in support.
Counsel continued that the At- torney General had argued that the Crown was not the respondent in these proceedings and that he was appearing for the Superintendent of Prisons Mr. J. W. Franks to show cause. In that case his (Mr. Jenkin's) submission would be that he was entitled to claim costs from the Superintendent or Prisons as from a private indivi- dual. He said that this was a case in which the discretion allowed to the Court should be exercised in his favour.
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Mr. Frank's Position.
Mr. Alabaster pointed out that the Superintendent of Prisons held the applicant, Li Sam, under series of detention warrants which had not been set aside. When the deportation order was served on the applicant, she was taken from the hands of the Superintendent of Prisons and placed in police cus- tody.
After further argument by the Attorney General as to why costs should not be allowed, Mr. Jenkin pointed out that Mr. Alabaster had not stated in Court that the custody of the applicant had pass- ed into other hands. The only re- ference to it was made last Friday when Mr. Alabaster asked their Lordships for a ruling as to whe- ther the applicants were in the custody of the Court or the police. If that had been done, the order made on the Superintendent of prisons could have been amended to read the Inspector General of Police.
The Chief Justice held that the Full Court had no power to give costs against the Crown in regard to a habeas corpus application in
a
case of extradition, but it was not clear whether the position was The point was reserved by their the same in a case of deportation. Lordships.
The Court adjourned until next Monday, at 10 a.m., for Mr. Jen- kin to argue on the validity of the new deportation order in the case of the male applicant.
JUDGE'S FINDING.
Chief Justice's finding in the case The following is the text of the
of the woman :---
1. My view of the latter part of Section 3A (4) of the Deportation Ordinance, 1917, is as follows:- The Legislature, no doubt feeling itself justified and indeed obliged by the conditions of the problem so to do, has laid down a very drastic and unusual procedure for cases falling under Section 3A. Under
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