Chu Shao Hung v The Queen

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.