A client, a relative of whom was arrested upon illegal entry into Hong Kong, recently inquired whether there is a "deportation upon arrest" policy. We suggest the client to check with the prosecuting authorities for any changes to the relevant policy. If there has been no change, the current policy governing the prosecution of illegal immigrants is as follows:

"Since November 1990 the categories of illegal iminigrants who are prosecuted for remaining in Hong Kong without the authority of the Director, having landed unlawfully, under section 38(1) of the Immigration Ordinance, Cap. 115 are:

(1) All IIs found at places of employment to be prosecuted regardless of the number found.

(2) All IIs committing offences whether immigration related or not.

(3) All IIs who have been previously sentenced to a term of imprisonment for an offence other than:

(a) illegally remaining;

(b) using an I.D. card relating to another person."

(see LAW KWAN (HCMA1068/1991)

If the client’s relative does not fall into the aforesaid categories, the authorities should, in accordance with the relevant policy, immediately deport him/her back to his/her country of origin without prosecution. This is because the Court of Appeal has offered the following advice to the relevant authorities: “ It is to be hoped that for the future a much closer scrutiny will be applied to prosecutions under the Immigration Ordinance so as to avoid the manifest unfairness to individuals resulting from the prosecutions of persons who lie outside prosecuting policy causing one individual to be dealt with in a manner different from another. This would also have the meritorious effect of saving the time of the courts.”  (NG TUNG FONG HCMA1296/1990) If the relevant authorities did not prosecute in accordance with the policy, the court or the Court of Appeal should issue an order for immediate release.

Where the authorities do not adhere to the prosecution policy in spite of the clear guidelines set out by the Court of Appeal, those lying outside the prosecution policy will still be detained upon prosecution instead of being deported back to their countries of origin immediately. They can only wait for the court to issue an order for their release, and that would mean a detention of several months in the meantime. Should the rights of illegal immigrants be protected? Should they be treated fairly? Has their freedom been denied? All these questions are worth pondering.

Author : La bel Sa I




la bel sa i

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