Asylum seekers request judicial review of prosecution for working

PUBLISHED : Thursday, 19 February, 2009, 12:00am
UPDATED : Thursday, 19 February, 2009, 12:00am

A group of 28 Pakistani asylum seekers are seeking a judicial review of the criminal prosecution the government brought against them for allegedly remaining unlawfully in Hong Kong.

They were arrested last year after they were found setting up stalls for market vendors in Tung Choi Street, Mong Kok.

At issue is the question of whether asylum seekers can be prosecuted for immigration offences, such as working illegally, before the conclusion of their asylum applications.

In the first judicial review application of its kind, the Court of First Instance yesterday heard that the asylum seekers, aged from 24 to 45, had been prosecuted for remaining illegally in Hong Kong after their arrest.

Each of them had pleaded not guilty in Sha Tin Court, before Magistrate Timothy Casewell, who ruled on November 27 last year that the case was not an abuse of process.

But Mr Casewell had stayed the proceedings, pending the result of the judicial review application, made by barristers Peter Wong, Hectar Pun Hei and Newman Lam before Mr Justice Alan Wright.

The application asks the court to determine if the prosecutions should be discontinued because they contravene the policy that asylum seekers are not to be prosecuted for offences relating to the making of their claims for asylum.

However, senior assistant director of public prosecution Patrick Cheung Wai-sun argued that the interpretation of the policy should include a prohibition against working.

Mr Wong told the hearing that only prosecutions for non-immigration offences, such as theft, could be instituted against asylum seekers.

Mr Pun said the magistrate failed to acknowledge that applicants had to report regularly to the Immigration Department to pay surety money.

'So they are not remaining in Hong Kong without authority from the director of immigration,' he said. 'It would be unreasonable for the director to say that the applicants remained in Hong Kong without his authority.'

Mr Justice Wright reserved his judgment.