Hong Kong Ordinances

HIGH COURT ORDINANCE - SECT 22A

Applications for, and issue of, writs of habeas corpus

(Past version on 30/06/1997).

Adaptation amendments retroactively made - see 25 of 1998 s. 2

(1) An application may be made to the Court of First Instance-

   (a)  alleging that a person named in the application is being detained
        without lawful justification; and

   (b)  requesting the issue of a writ of habeas corpus in respect of that
        person.

(2) An application can be made by the person alleged to be detained, or by any
other person on that person's behalf, and, in particular, can be made by or on
behalf of a person who claims to be legally entitled to the custody of another
person.

(3) An application can be made ex parte.

(4) As soon as practicable after receiving an application, the
Court of First Instance must inquire into the allegation that the applicant is
being unlawfully detained. All proceedings under this section are to be
conducted in open court unless the Court, in exceptional circumstances
specified by the Court, orders the proceedings, or a part of the proceedings,
to be conducted in camera. All orders and decisions made in respect of those
proceedings, and the reasons for those orders and decisions, are in every case
to be announced in open court.

(5) On considering the application, the Court of First Instance must, if
satisfied that the application has substance, do either of the following-

   (a)  order the issue of a writ of habeas corpus directing the person having
        custody of the applicant to have the applicant brought before the
        Court at a specified time on a specified date and to certify to the
        Court the grounds for the applicant's detention;

   (b)  order the person having custody of the applicant to appear before the
        Court in order to justify the lawfulness of the applicant's detention.

(6) The Court of First Instance may dismiss an application for a
writ of habeas corpus if satisfied, on considering the application, that it
has no substance.

(7) The person to whom a writ of habeas corpus is directed must, not later
than the time and on the date specified in the writ-

   (a)  produce before the Court of First Instance the person alleged to be
        detained; and

   (b)  make a formal return to the writ. However, the Court of First Instance
        may extend the time within which a writ of habeas corpus must be
        complied with if it is satisfied that there is a good reason to do so.

(8) If for any reason it is not possible for the person to whom a
writ of habeas corpus is directed to comply with the writ, that person must
nevertheless make a return to the Court of First Instance specifying the
reason why it is not possible to comply with the writ.

(9) When a person is brought before the Court of First Instance in accordance
with a writ of habeas corpus, the Court must immediately inquire into the
circumstances surrounding the detention of the person and must order the
release of that person from detention unless satisfied that the detention is
lawful.

(10) If a person who has custody of a detained person appears before the Court
in accordance with an order made under subsection (5)(b) but fails to satisfy
the Court that the detention is lawful, the Court must order the detained
person to be released from detention immediately.

(11) If a writ of habeas corpus has been issued in respect of a detained
person, the person having custody of the detained person must not, until the
writ is discharged or the proceedings are concluded-

   (a)  allow the detained person to be moved to another place of detention in
        Hong Kong otherwise than under the authority of the Prisons  Ordinance
        ( Cap 234) or of any other enactment expressly providing for the
        detention of persons; or

   (b)  allow the detained person to be removed from Hong Kong.

(12) If a person who was formerly held in detention on a particular ground is
released because of the issue of a writ of habeas corpus, or in accordance
with an order made under subsection (10), a person may redetain that person on
the same or a similar ground only if there has been a material change in the
relevant circumstances.

(13) A person who-

   (a)  fails to comply with a writ of habeas corpus or with a requirement of
        this section; or

   (b)  contravenes subsection (12), is guilty of contempt of the
        Court of First Instance.

(14) The right to obtain a writ of habeas corpus under the common law is
preserved and is affected by this section only in so far as it is inconsistent
with this section.

(15) For the purposes of this section-

   (a)  a person has custody of another person not only when the person has
        actual custody over the body of that other person but also when the
        person has power or control over that other person's body; and

   (b)  in relation to an application made on behalf of a person, a reference
        to an applicant includes a reference to that person. (Added 95 of 1997
        s. 3. Amended 25 of 1998 s. 2)