Chapter 3

Case of Public Interest or Concern

Ubamaka Edward Wilson v Secretary for Security FACV 15/2011

Mr Ubamaka, a Nigerian national, was convicted and sentenced to 24 years' imprisonment after being arrested at the Hong Kong airport in 1991 for drug trafficking. On 5 July 1999, the Secretary for Security issued a deportation order against him. As the date of his release neared, he applied on 7 September 2006 to the United Nation High Commissioner for Refugees in Hong Kong claiming refugee status, claiming fear of being subjected to double jeopardy by re-prosecution under the Nigerian law. In March 2007, he also lodged a separate claim under the Convention Against Torture (a person who may be subject to torture or other inhuman treatment by officials of his home country may resist deportation under this Convention). His application for refugee status was rejected in December 2007.

On 27 December 2007, Mr Ubamaka was released from prison for good behaviour after serving 16 years of imprisonment. After his release, the Government ordered his deportation to Nigeria. With the assistance of legal aid, Mr Ubamaka instituted judicial review proceedings to challenge the validity of the deportation order.

The Government's case was that section 11 of the Hong Kong Bill of Rights Ordinance ("BOR Ordinance") precludes persons, like Mr Ubamaka, who do not have the right to enter and remain in Hong Kong, from relying on the constitutional rights protected by the Bill of Rights ("BOR") to challenge a deportation order. Section 11 of the BOR Ordinance provides that "As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation." The government relied on section 2(2) of the BOR Ordinance which provides that "The Bill of Rights is subject to Part III". Section 11 is in Part III and therefore overrides the rights contained in the BOR including the rights against deportation under BOR Article 11(6); and against cruel, inhuman or degrading treatment or punishment ("inhuman treatment") under BOR Article 3. Further, the Government argued that the evidence in this case did not establish anything amounting to inhuman treatment.

Mr Ubamaka's case was that if he were to be deported to Nigeria, he was likely to be prosecuted and punished again for drug trafficking even though he had already spent 16 years in prison in Hong Kong for that offence, and that the deportation would expose him to double jeopardy prohibited by BOR Article 11(6) and would amount to sending him to face inhuman treatment prohibited by BOR Article 3. Further, he contended that the limitation imposed by section 11 of the BOR Ordinance is unconstitutional and must be either read down or severed from the BOR Ordinance altogether so that it does not preclude his reliance on BOR Articles 11(6) and 3.

The Court of First Instance held that Mr Ubamaka might face double jeopardy and quashed the deportation order but the Court of Appeal reinstated it. Mr Ubamaka appealed to the Court of Final Appeal.

On the double jeopardy ground, the Court of Final Appeal agreed with the courts below that Mr Ubamaka could not in law invoke the protection of BOR Article 11(6) against the execution of the deportation order because such protection has been excluded by section 11 of the BOR Ordinance. The right against double jeopardy is neither non-derogable nor absolute. Since Mr Ubamaka was a person not having the right to enter and remain in Hong Kong as defined in section 11, the Court of Final Appeal ruled that the deportation order made under section 20(1)(a) of the Immigration Ordinance was unaffected by the provisions of BOR Ordinance including BOR Article 11(6). The Court of Final Appeal also concluded that section 11 is consistent with Article 39 of the Basic Law and constitutionally valid.

On the issue of inhuman treatment, the Court of Final Appeal rejected the Government's argument that it was under no duty to consider Mr. Ubamaka's claim that he would be subject to inhuman treatment and ruled that the right to protection against such treatment in BOR Article 3 is an absolute and non-derogable right which section 11 cannot override. However, the Court of Final Appeal accepted that evidence in this case did not show anything approaching ill-treatment of the severity required to amount to such treatment or punishment and unanimously dismissed Mr Ubamaka's appeal.

The decision of the Court of Final Appeal clarifies the constitutional validity, scope and effect of the reservation relating to immigration legislation contained in section 11 of the BOR Ordinance; and the impact of that immigration reservation on the rights of protection against double jeopardy and torture or cruel, inhuman or degrading treatment provided by the BOR.