Chu Shao Hung v The Queen - [1953] HCA 33

CHU SHAO HUNG

THE QUEEN

RESPONDENT.

ON APPEAL FROM THE COURT OF CRIMINAL APPEAL OF Immigration-Immigrants-Dictation test-Failure-Prohibited immigrant-Con- H.

viction-Penalty-Imprisonment for six months-Deportation-Release on bond-Power- Discretion of court-Immigration Act 1901-1949 (No. 17 of 1901-No. 31 of 1949), SS. 5 (2) (6), 7, 7A, 7AA, 8c-Crimes Act 1914-1950 (Cth.) (No. 12 of 1914-No. 80 of 1950), S. 20*-Acts Interpretation Act 1901- 1950 (No. 2 of 1901-No. 80 of 1950), S. 41.

The provisions of S. 20 of the Crimes Act 1914-1950 (Cth.) apply in the case of a conviction under S. 5 (6) of the Immigration Act 1901-1949. Therefore a court may release a person convicted under that sub-section, upon his giving security to be of good behaviour and to comply with any conditions which may be imposed.

So held by Fullagar and Kitto JJ. (Williams A.C.J. dissenting). Decision of the Court of Criminal Appeal: Reg. v. Chu Shao Hung (1953) 70 W.N. (N.S.W.) 92 reversed.

leased in pursuance of this section fails 1950 provides :- (1.) If the Court

to comply with the conditions upon thinks fit to do so, it may release any

which he was released, he shall be person convicted of an offence against

guilty of an offence. Penalty: Im- prisonment for the period provided by passing any sentence upon him, upon

law in respect of the offence of which his giving security, with or without

he was previously convicted. (3.) The sureties, by recognizance or otherwise,

penalty provided by the last preceding sub-section may be imposed by the will be of good behaviour for such

Court by which the offender was period as the Court thinks fit to order

originally convicted or by any Court and will during that period comply

of Summary Jurisdiction before which he is brought. (4.) In addition, the thinks fit to impose, or may order his

recognizance of any such person and those of his sureties shall be estreated, served any portion of his sentence.

and any other security shall be (2.) If any person who has been re-

87 CLR 576

A. APPLICATION for special leave to appeal, and APPEAL, from the

Court of Criminal Appeal of New South Wales.

Chu Shao Hung, a Chinese national, failed, on 5th September 1952, to pass a dictation test required pursuant to S. 5 (2) of the

THE QUEEN.

Immigration Act 1901-1949, and on the same day, at Wallerawang, New South Wales, pursuant to S. 5 (6) of that Act, he was convicted of the offence of being a person deemed to be a prohibited immigrant offending against the Act, and was sentenced to be imprisoned in the prison at Long Bay in the said State, there to be kept to hard labour for the space of six months pending deportation.

Upon an appeal by Chu Shao Hung against the severity of the penalty in SO far as it involved imprisonment, the chairman of quarter sessions, pursuant to S. 5B of the Criminal Appeal Act 1912-1951 (N.S.W.),…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1953] HCA 33
Decision Date: 9 June 1953

CaseChat Overview and Summary

The case of *Chu Shao Hung v The Queen* concerned an appeal to the High Court of Australia from a decision of the Court of Criminal Appeal of New South Wales. The appellant, Chu Shao Hung, a Chinese national, had been convicted under section 5(6) of the *Immigration Act 1901-1949* (Cth) for failing a dictation test, which rendered him a prohibited immigrant. He was sentenced to six months' imprisonment pending deportation. The central dispute revolved around whether section 20 of the *Crimes Act 1914-1950* (Cth), which allows courts to release convicted persons on security, applied to convictions under section 5(6) of the *Immigration Act*.

The legal issue before the High Court was whether the provisions of section 20 of the *Crimes Act* were applicable to a conviction under section 5(6) of the *Immigration Act*. This question arose because the Court of Criminal Appeal had determined that section 20 did not apply, meaning the appellant could not be released on a bond or recognisance under that provision, and would therefore have to serve his sentence of imprisonment pending deportation. The appellant argued that section 20 should apply, allowing for his release on conditions, thereby avoiding prolonged imprisonment while deportation arrangements were made.

A majority of the High Court, comprising Fullagar and Kitto JJ., held that section 20 of the *Crimes Act* did apply to convictions under section 5(6) of the *Immigration Act*. Their reasoning was that section 20 is a general provision applicable to any offence against Commonwealth law, and there was no express or implied exclusion of its operation within the *Immigration Act*. While acknowledging that the *Immigration Act* contained specific provisions regarding release and deportation (sections 7, 7A, and 7AA), the majority found no necessary inconsistency or incongruity that would prevent section 20 from coexisting. They reasoned that if section 20 were applied, the conditions of release under that section would mean that the specific provisions of sections 7AA and 7A of the *Immigration Act* would simply not apply, as no imprisonment would be imposed. Williams A.C.J., dissenting, concluded that the *Immigration Act* provided a complete code for dealing with convicted immigrants, and that the specific provisions within that Act, particularly concerning release and deportation, impliedly excluded the operation of the more general provisions of section 20 of the *Crimes Act*.

The High Court granted special leave to appeal and, by majority decision, allowed the appeal. The decision of the Court of Criminal Appeal was reversed, establishing that a court has the power under section 20 of the *Crimes Act* to release a person convicted under section 5(6) of the *Immigration Act* upon their giving security to be of good behaviour and to comply with any conditions imposed by the court.

Orders