Chu Shao Hung v The Queen [1953] HCA 33

Chu Shao Hung v The Queen [1953] HCA 33

By majority, s. 20 of the Crimes Act 1914-1950 applies to a conviction under s. 5 (6) of the Immigration Act 1901-1949 because such a conviction is for an offence against the law of the Commonwealth, the Immigration Act contains no express exclusion and no necessary implication excluding s. 20, the imprisonment specified in s. 5 (6) is a maximum penalty rather than a mandatory sentence, and ss. 7AA and 7A operate only where imprisonment has actually been imposed and can stand consistently with s. 20.

Jurisdiction
Australia
Procedural Posture
Application for Special Leave to Appeal and Appeal Concerning a Case Stated in Criminal Proceedings / Special Leave Granted and Appeal Allowed From a Rule of the Supreme Court of New South Wales Sitting as the Court of Criminal Appeal
Outcome
Special leave to appeal granted; appeal allowed; the Supreme Court rule was discharged and the question in the stated case was answered in the affirmative.
Legal Topics
['application of S. 20 of the Crimes Act 1914 to Commonwealth Immigration Offences' 'dictation Test and Prohibited Immigrants' 'deportation Following Conviction' 'maximum Penalty Construction Under the Acts Interpretation Act']
['criminal Law' 'immigration Law' 'statutory Interpretation'] ['application of S. 20 of the Crimes Act 1914 to Commonwealth Immigration Offences' 'dictation Test and Prohibited Immigrants' 'deportation Following Conviction' 'maximum Penalty Construction Under the Acts Interpretation Act']

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Procedural Posture

Application for Special Leave to Appeal and Appeal Concerning a Case Stated in Criminal Proceedings / Special Leave Granted and Appeal Allowed From a Rule of the Supreme Court of New South Wales Sitting as the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the provisions of s. 20 of the Crimes Act 1914 (as amended) apply to a conviction under s. 5 sub-s. (6) of the Commonwealth Immigration Act 1901 (as amended).' 'Whether the Immigration Act expressly or by necessary implication excludes the general power in s. 20 of the Crimes Act to release a convicted person without passing sentence upon security for good behaviour.' 'Whether the words prescribing imprisonment for six months in s. 5 (6) of the Immigration Act require imprisonment in every case or prescribe only a maximum penalty.']

Ratio Decidendi

By majority, s. 20 of the Crimes Act 1914-1950 applies to a conviction under s. 5 (6) of the Immigration Act 1901-1949 because such a conviction is for an offence against the law of the Commonwealth, the Immigration Act contains no express exclusion and no necessary implication excluding s. 20, the imprisonment specified in s. 5 (6) is a maximum penalty rather than a mandatory sentence, and ss. 7AA and 7A operate only where imprisonment has actually been imposed and can stand consistently with s. 20.

Court Disposition

Special leave to appeal granted; appeal allowed; the Supreme Court rule was discharged and the question in the stated case was answered in the affirmative.

Orders

  • ['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.']