Gamble v Lau Sang [1943] HCA 16

Gamble v Lau Sang [1943] HCA 16

The offence established by s. 5(6) depends solely on whether the individual, by virtue of s. 5, is deemed a prohibited immigrant. Status or exceptions in s. 3 have no bearing on s. 5 offences; thus, the magistrate erred in acquitting the defendants on the basis of s. 3 exceptions. The Court held that the facts established the offence as charged and the magistrate's determination was erroneous in law.

Parties
Appellant; Informant: Leo Thomas Gamble; Respondent; Defendant: Lau Sang; Respondent; Defendant: Luk Ling
Jurisdiction
Australia
Procedural Posture
Appeal by Way of Case Stated / On Appeal From a Court of Petty Sessions of New South Wales
Outcome
magistrate's determination set aside; question answered in the affirmative; case remitted to the magistrate
Legal Topics
Prohibited Immigrant, Dictation Test, Crew Members, Offence Under Immigration Act
Immigration Law Criminal Law Prohibited Immigrant Dictation Test Crew Members Offence Under Immigration Act

Case Brief

Summary, issues, holding and outcome

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Parties

Leo Thomas Gamble

Appellant; Informant

Lau Sang

Respondent; Defendant

Luk Ling

Respondent; Defendant

Procedural Posture

Appeal by Way of Case Stated / On Appeal From a Court of Petty Sessions of New South Wales

Legal Issues

  1. 1 Whether s. 3 of the Immigration Act 1901-1940 modifies or affects s. 5 of the Act.
  2. 2 Whether defendants, as members of a ship's crew who failed the dictation test within five years of entry, are guilty of an offence under s. 5(6).

Ratio Decidendi

The offence established by s. 5(6) depends solely on whether the individual, by virtue of s. 5, is deemed a prohibited immigrant. Status or exceptions in s. 3 have no bearing on s. 5 offences; thus, the magistrate erred in acquitting the defendants on the basis of s. 3 exceptions. The Court held that the facts established the offence as charged and the magistrate's determination was erroneous in law.

Court Disposition

magistrate's determination set aside; question answered in the affirmative; case remitted to the magistrate

Orders

  • Question answered in the affirmative.
  • Case remitted to the magistrate.