Chu Shao Hung v The Queen [1953] HCA 33

High Court of Australia Williams A.C.J. Fullagar and Kitto JJ. Chu Shao Hung v The Queen [1953] HCA 33

ORDER Special leave to appeal granted. Appeal allowed. Rule of the Supreme Court of New South Wales discharged. In lieu thereof order that Question (1) in the case stated be answered in the affirmative.

Cur. adv. vult.

The following written judgments were delivered:—

June 9 Williams A.C.J.

This is a motion on notice by a Chinese immigrant for special leave to appeal from an order of the Supreme Court of New South Wales sitting as the Court of Criminal Appeal answering in the negative a question asked in a case stated by a chairman of quarter sessions for the opinion of that Court pursuant to s. 5B of the Criminal Appeal Act 1912-1951 N.S.W.. The question is as follows: "Do the provisions of s. 20 of the Commonwealth Crimes Act 1914 (as amended) apply to a conviction under s. 5 sub-s. (6) of the Commonwealth Immigration Act 1901 (as amended)?"

The question raises a point of general public importance in the administration of the immigration laws and special leave should be granted if we disagree with the Supreme Court. It has been fully argued on the merits so that if special leave is granted we can also dispose of the appeal.

The short facts are that the immigrant was given a dictation test under s. 5 (2) of the Immigration Act 1901-1949 which he failed to pass and was prosecuted before a magistrate under s. 5 (6) of that Act and sentenced to six months' imprisonment. He appealed against the severity of the sentence to quarter sessions and the chairman stated the above case for the opinion of the Supreme Court. The chairman did not indicate whether he proposed to release the immigrant on a bond and not to sentence him if he had the power to do so under s. 20 of the Crimes Act 1914-1950. In my opinion he has no such power. Section 20 applies in terms to any person convicted of any offence against the law of the Commonwealth and the immigrant was convicted of such an offence. The section must therefore apply to a conviction under s. 5 (6) of the Immigration Act unless the provisions of that Act are sufficient to imply an intention to the contrary.