SUPERINTENDENT OF TAI A CHAU DETENTION CENTRE v. TAN LE LAM and Others

IN THE COURT OF APPEAL

1995, No. 31 (Civil)
and 1995, No. 65 (Civil)

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H E A D N O T E

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Habeas corpus - Vietnamese migrants "screened out" as refugees and detained pending removal from Hong Kong under s13D(1) Immigration Ordinance - Burden of proving legality of detention discharged once it was shown that the purpose was for repatriation to Vietnam and such purpose was not spent - No further burden on Director to "prove" that it was more likely than not that Vietnam would eventually accept back the detainees.

Held: (Court of Appeal): Director's appeal allowed. Judge's order releasing applicants from detention quashed.

Observations on:

(i) Statutory scheme under Part IIIA Immigration Ordinance.

(ii) Relevance of English High Court's decision in Hardial Singh [1984]1 WLR 704 vis-à-vis the Hong Kong statutory scheme.

IN THE COURT OF APPEAL

1995, No. 31
(Civil)

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J U D G M E N T

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Litton, J.A. (giving the judgment of the court):

1. These are consolidated appeals. They arise from habeas corpus proceedings concerning four Vietnamese migrants identified in the court below as A8 Mr Luu Tai Phong, A9 Mr Tan Le Lam, A10, Mr Phung Hoan and A11 Madam Ly Hue My.

2. In CA 31/95, the appellant is the superintendent of Tai A Chau Detention Centre, appealing against Keith J's judgment of 24 January 1995 ordering that A9, A10 and A11, be "released forthwith as their detention had become unlawful". In CA 65/95 A8 is the appellant, appealing against Keith J's judgment of the same date whereby he ordered that an earlier order of the High Court dated 19 December 1994 for the issue of a writ of habeas corpus in respect of A8 be discharged.

Background

3. All four applicants are Chinese by ethnic origin. Two of them were born in Vietnam: A8 and A11. They were all previously resident in Vietnam and arrived in Hong Kong without any valid travel document at different times, ranging from May 1989 in A11's case to April 1991 in A9's case. Their arrival coincided with what has been described as the "second wave" of migrants from Vietnam, when, between 1988 to 1992, a total of 71,300 came, including 34,100 in the year 1989 alone. It goes without saying that when a community finds itself put under strain of this dimension, the government must react. Although the earlier Vietnamese boat-people were automatically treated as refugees and were permitted to remain in Hong Kong pending resettlement overseas, by the mid-1980s the pattern of migration from Vietnam had changed and most of the migrants were found not to qualify as refugees under the 1951 United Nations Convention and the 1967 Protocol. This led to the introduction of a new policy. As from 16 June 1988 all Vietnamese migrants who arrived without travel documents had read to them a notice, the effect of which was that if they chose to come to Hong Kong rather than proceed on their journey, they would be detained pending screening and if screened out would be detained pending repatriation to Vietnam. Keith J summed up the position as follows:

"... the message since 1988 to those living in Vietnam who were minded to flee to Hong Kong was that if they did so, they would be detained pending the determination of their claim for refugees status, and if that claim was rejected, they would be detained pending their repatriation to Vietnam."

4. This policy is implemented by s13D(1) of the Immigration Ordinance Cap 115 which, as it now stands, reads:

"13D.  Detention pending decision as to permission to remain in Hong Kong, or pending removal from Hong Kong

(1)   As from 2 July 1982 any resident or former resident of Vietnam who -

(a)   arrives in Hong Kong not holding a travel document which bears an unexpired visa issued by or on behalf of the Director; and

(b)    has not been granted an exemption under section 61(2),

may, whether or not he has requested permission to remain in Hong Kong, be detained under the authority of the Director in such detention centre as an immigration officer may specify pending a decision to grant or refuse him permission to remain in Hong Kong or, after a decision to refuse him such permission, pending his removal from Hong Kong, ...."

5. It was pursuant to s13D(1) that the four applicants were detained since their arrival in Hong Kong, until 24 January 1995 in respective of A9, A10 and A11 when they were released upon the Judge's order.

"Blanket" detention

6. In the court below, it was argued that the word "may" in s13D(1) shows that detention is discretionary and therefore that the "blanket" detention of all arrivals, without consideration of individual circumstance, was unlawful.

7. Support for this argument is said to be found in the decision of Sears J in Pham Van Ngo [1991]1 HKLR 449 at 507B-D:

"... it is trite law that a discretionary power, particularly one which has such dramatic effect, must be exercised in accordance with well-established principles (see C.C.S.U. v. Minister for Civil Service [1985]1 A.C. 374). I do not consider that Mr. Cheuk [i.e. Mr. Choy's predecessor] exercised any discretion at all. He ... admitted that he always made the order [for detention under section 13D] ... when informed that it was a Vietnamese boat. The order was a 'blanket' one covering everybody on board; no individual consideration was given to any of 113 persons. This was, in my judgment, rubber-stamp administration at its worst ... I am no doubt that this decision was unlawful."

8. Keith J rejected this argument. He said:

"If Sears J, was saying in this passage that the exercise of a discretionary power is always unlawful if it involves following a policy which has been laid down in advance, I must disagree with him. A person in whom a discretionary power is vested may, in the exercise of that discretion, adopt a policy as to how his discretion is to be exercised."

We wholly agree with Keith J in this regard. Sears J's observation was unnecessary to the decision in the case. Pham Van Ngo concerned a narrow point: whether, in terms of s13D(1), the 113 Vietnamese had "arrived" in Hong Kong. They were on board a steel-hulled ocean-going vessel when first seen by the Marine Police and all they wanted was assistance from the Hong Kong Government to facilitate their journey to Japan where migrants from Vietnam were still treated at that time as refugees. They did not intend to "land" in Hong Kong and had not done so technically because, when they eventually disembarked from their vessel, as Sears J found, they did so on the government's invitation to enter "for the purposes of establishing their identity and having their boat repaired" (p507E). The facts of this case are unusual and, on those facts, Sears J undoubtedly came to the right decision. Many of the wider statements in his judgment were strictly obiter.

9. In our judgment, Keith J was undoubtedly correct when he concluded that the Director has the discretionary power to make orders for detention without consideration of the circumstances of each Vietnamese migrant as they arrive in Hong Kong without travel documents.

Detention upon Arrival

10. Returning to the background facts, the four applicants were, upon their arrival in Hong Kong, detained under s13D(1) pending a decision to grant or refuse them permission to remain in Hong Kong. Not surprisingly, given the number of arrivals at that time, the screening process took some time.

Detention after Screening

11. Eventually, the four applicants were finally "screened out": that is to say, that the Refugee Status Review Board in each case confirmed the decision of the Director of Immigration, under s13F(5), that they were not refugees and accordingly orders that they be detained pending their removal from Hong Kong were confirmed.

12. The Judge found that, in respect of each of the four persons A8, A9, A10 and A11, the orders to detain, made after they were "screened out", were initially lawful. Nevertheless, he found that, in respect of A9, A10 and A11, by the date of their applications for writ of habeas corpus - all made on the same day, 19 December 1994 - the detention "had become unlawful".

Length of detention

13. The dates of the decisions of the Refugee Status Review Board in respect of A9, A10 and A11, respondents to the appeal in CA 31/95, are as follows:

A9: 15 January 1994

A10: 25 May 1993

A11: 11 October 1991.

14. From the time they were screened out their detention was, in terms of s13D(1), pending their removal from Hong Kong: that is to say, pending arrangements for their repatriation to Vietnam, their country of origin.

15. In considering the length of detention of Vietnamese migrants, it is important to bear in mind the distinction between detention "pending a decision to grant or refuse him permission to remain in Hong Kong" and detention "pending his removal from Hong Kong" : a distinction easily forgotten as the two different situations are dealt with almost in the same breath in s13D(1). The former involves mainly the deployment of local resources - the building up of the infrastructure for "screening" including the employment and training of Vietnamese interpreters, immigration officers and other support staff, the setting up of a proper review process and the training of personnel for that purpose; the involvement of outside agencies like the UNHCR and the AVS (Agency of Voluntary Service) in the screening process is relatively minor; delay in screening and the resultant prolongation of detention "pending a decision to grant or refuse him permission to remain in Hong Kong" could be said to be the Government's "fault" in not making more resources available more quickly. It is easy to understand why, in relation to such detention, Keith J said:

"First, a power of detention which is not expressed to be limited in duration is nevertheless to be regarded as impliedly limited to a period which is reasonably necessary to achieve the purpose for which the power was granted, though that period may differ from case to case depending on the circumstances of each case. That was also the view of Godfrey J. (as he then was) in Liew Kar-seng v. The Governor-in-Council [1989]1 HKLR 607 at p.609H. Secondly, to the extent that the person in whom the power of detention is vested can control the period which it would take to achieve the purpose for which the power was granted, that person should take the steps necessary to achieve it with all reasonable expedition."

16. However, it should be emphasized that these "implied limits", such as they are, can only be arrived at by a process of judicially interpreting the Hong Kong Ordinance: not by importing into the Hong Kong Ordinance implications found by overseas judges to be applicable in respect of wholly different statutory schemes (though, obviously, a proper regard to the reasoning of overseas judges in comparable cases can be of great value). The government's resources are considerable and the legislature, in giving to the Director the power to detain pending a decision to grant or refuse permission to remain, must have had this fact in mind: that manpower and financial resources would, within reason, be allocated to the Director to enable him to carry out his work: this is reflected in subsection (1A)(a) of s13D(1). This enables a court to find that, in respect of such detention, an inordinately lengthy period could render the detention unlawful.

17. These two appeals are not, however, concerned with detention pending a decision to grant or refuse permission to remain in Hong Kong. They are concerned with detention pending removal from Hong Kong, where different considerations apply.

General approach to exercise of power under s13D(1)

18. Repatriation of illegal immigrants, whether from Vietnam or elsewhere, is at the least a bilateral process, requiring dialogue between the Hong Kong Government and the immigration authorities overseas. This is the position regarding the Orderly Repatriation Programme for the forcible repatriation of Vietnamese migrants. In relation to the Voluntary Repatriation Programme, it is a tripartite process, involving the Hong Kong Government and UNHCR, and UNHCR and the government of Vietnam: there the Hong Kong Government has no direct contact with the Vietnam authorities.

19. Not every case is the same. There could well be difficulties in individual cases, and some might be more serious than others. No court can ever lay down a time limit during which the arrangements between governments, or governments and the UNHCR, for the return of illegal entrants, must be completed.

20. In relation to Vietnam, the situation is particularly difficult. That country, and its government, is emerging from a period of isolation from the rest of the world and, as the evidence before us shows, its policies are not always consistent - at least, as perceived from the outside. Or, if the policies are consistent, they are not consistently applied. Policies can, and of course do, change with time. When the legality of the detention of a particular Vietnamese migrant depends only in part upon the efforts of the Hong Kong Government in effecting his or her repatriation to Vietnam, the passage of time alone cannot provide a guide to the legality of that detention. All that can be said, as a matter of common-sense, is this: there must come a point in time when the purpose of the detention, that is to say, removal from Hong Kong, cannot upon any realistic view of the facts, be achieved. When that point is reached, the purpose for which the detention is justified under the statute is spent. Further detention then becomes unlawful. But, as to whether such purpose can, as a matter of hard fact, be achieved, the judgment of the Director of Immigration must carry great weight with the court. He is, after all, charged by the legislature with the responsibility of carrying out the policy set out in the Ordinance; so long as he is acting in good faith and within the scope and purpose of the Ordinance it is difficult to think of circumstances where a court could legitimately interfere.

21. Repatriation might involve at times delicate negotiations between governments. The foreign government is not a party to the proceedings. The court is in no position to weigh up its policies and attitudes judicially. If the circumstances of a particular group of Vietnamese migrants were in fact under discussion between the two governments, or thought in good faith by the Director to be under consideration by the Vietnamese authorities, the court generally cannot intervene: no court can declare with confidence that the purpose of detention is spent when, factually, dialogue and negotiations are still underway.

The court's supervisory jurisdiction

22. Reference has been made in the course of argument before us, and in the court below, to the court's supervisory role in immigration cases, where the use of executive power of detention has been called into question, and in particular to R. v. Home Secretary, ex p. Khawaja [1984]1 AC 74; this and other similar cases seem to have been used in argument in the court below as authority for a roaming inquiry into collateral matters, pursuant to the issue of the writ of habeas corpus. It is as well to recall what Lord Bridge said in R. v. Home Secretary, ex p. Bugdaycay [1987] 1 AC 514 said at p522G:

"The question whether an applicant for leave to enter or remain is or is not a refugee is only one, even if a particularly important one ... of a multiplicity of questions which immigration officials ... must daily determine in dealing with applications for leave to enter or remain in accordance with the rules, as for example, whether an applicant is a bona fide visitor, student, businessman, dependant etc. Determination of such questions is only open to challenge in the courts on well known Wednesbury principles .... There is no ground for treating the question raised by a claim to refugee status as an exception to this rule. For the reasons explained at length in the speeches in Khawaja's case the court's fundamentally different approach to an order for removal on the ground of illegal entry is dictated by the terms of the statute itself, since the power to direct removal under paragraph 9 of Schedule 2 is only available in the case of a person who is in fact an 'illegal entrant'". (Emphasis added).

23. In other words, the court's powers of intervention, whether the proceedings be in the nature of habeas corpus or judicial review, must be exercised in the context of the particular statutory scheme concerned.

24. The Director has statutory duties and powers. The court's supervisory function in relation to cases coming within Part IIIA of the Immigration Ordinance is to give effect to the statutory scheme for the treatment of migrants from Vietnam, in accordance with its true intent and spirit. Plainly, s13D(1) empowers the Director to implement the new policy introduced in 1988: that Vietnamese migrants entering Hong Kong after 16 June 1988 without valid travel documents will be detained on arrival and, unless accorded refugee status, will continue to be detained until repatriated. No statutory arrangements have been made for any other scenario. This point was forcefully brought home to us when we enquired of counsel what means of identity are now carried by A9, A10 and A11, upon their release from detention pursuant to the Judge's order, to enable them to be lawfully employed. The answer was: an "approved document", that is to say, a written recognisance purportedly issued under s32 of the Immigration Ordinance. This arrangement was arrived at, we were told, by "negotiation" with the solicitors representing A9, A10 and A11.

25. Take the instance of A11. The "recognisance" is headed "section 36(1)" and it says:

"WHEREAS Ly Hue My (Female, born in Vietnam on 18-06-66/08-06-66) currently of Tai A Chau Detention Centre is detained under section 32 of the Immigration Ordinance:

Now -

the said Ly Hue My hereby acknowledges that he/she will pay to the Crown the sum of $1⁰⁰ if the said Ly Hue My fails to report to an immigration officer or assistant of Immigration Department at Pillar Point Vietnamese Refugee Centre on 25 April 1995 ....

Signed by -

the said Ly Hue My

on 24 January 1995."

26. A note in the same document states that this recognisance is an "approved document" so that employers by inspecting it are not in breach of the Ordinance by employing the holder.

27. But a recognisance, entered into pursuant to s36, presupposes that the migrant "is to be removed from Hong Kong under ... section 13E": see s32 of the Ordinance. And s13E is the section that empowers the Director to order persons under detention to be removed from Hong Kong: the same detention found by the Judge to have been unlawful. In short, the arrangements concerning A9, A10 and A11 are now "extra-statutory". The "recognisances" entered into by them have no foundation in law. Such a state of affairs is astonishing in a territory which prides itself on the rule of law: it plainly calls into question the correctness of the judgment now under appeal.

The Hardial Singh case

28. In the course of argument, it was submitted by counsel that "detention without trial" is so abhorrent to the common law that s13D(1) must be construed in such a way as to imply a requirement of "reasonableness" in the exercise of the power of detention under that section, so that it would in effect read:

"... be detained under the authority of the Director ... pending his removal from Hong Kong to be carried out within a reasonable time ...."

This approach is said to be justified by Woolf J's decision at first instance in R v. Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 which concerned the Secretary of State's power of detention pending deportation from the United Kingdom. Particular reliance was placed upon this passage in Woolf J's judgment at 706-E:

"Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention.

In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time."

29. These observations were made in the context of the United Kingdom statutory scheme: Schedule 3 to the Immigration Act 1971 which is quite different from Part IIIA of the Immigration Ordinance. It must be borne in mind that Hardial Singh and similar cases in England are concerned with the deportation of persons lawfully in the United Kingdom. Hardial Singh himself had, since 1977, been lawfully in the United Kingdom and had leave to remain indefinitely when, consequent on convictions for criminal offences, a deportation order was made on 4 March 1983. It was not a case concerning illegal entrants: a distinction which Woolf J was at pains to point out when, at 707G with reference to the case of R v. Governor of Durham Prison, ex parte Sital Singh (unreported) cited in argument, he said:

"... I accept that there is a real distinction between Sital Singh's case and the present case in that there the applicant was an illegal entrant who should never have been in this country at all. That cannot be said of the present applicant."

30. It seems to us that this distinction is important. Where the statutory scheme for detention involves people who have already established a way of life within the jurisdiction, their release pending deportation would generally cause no social problems: they have, presumably, some existing means of livelihood and would, if released, simply continue their established way of life. This cannot apply in the case of Vietnamese migrants. They have no existing way of life outside the detention centre: and, adopting Woolf J's remark in Hardial Singh, in relation to those 'screened out', they should never have been here at all. In our judgment the so-called Hardial Singh rules have no application to the statutory scheme under Part IIIA in Hong Kong.

Proper construction of s13D(1)

31. In our judgment, s13D(1) of the Immigration Ordinance must be construed as it stands, unfettered by 'implications'. The wording of the section is simple enough, and there are no words used in any unusual sense. The section must be given its plain ordinary meaning. There is only one test of legality: whether the detention is in fact "pending [the Vietnamese migrant's] removal from Hong Kong". So long as it is so, the detention is lawful.

32. Section 13D(1A) provides a guide to the legality of detention under subsection (1). In relation to detention pending removal from Hong Kong it says:

"(1A) The detention of a person under this section shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to all the circumstances affecting that person's detention, including -

(a) - not relevant -

(b) in the case of a person being detained pending his removal from Hong Kong -

(i) the extent to which it is possible to make arrangements to effect his removal; and

(ii) whether or not the person has declined arrangements made or proposed for his removal."

33. Insofar as section 13D(1A) is relevant to the circumstances which the Director had to consider, it tended to sustain the legality of the detention: particularly having regard to para (b)(ii), since three of the four applicants had declined voluntary repatriation after they were screened out and A8 had, after agreeing to voluntary repatriation originally, later changed his mind. All four therefore had "declined arrangements proposed for [their] removal".

The judge's approach

34. Keith J found that the periods during which each of the applicants had been detained pending their removal from Hong Kong "extremely long"; whilst recognising that during a part of those times their cases were being reviewed by the Refugee Status Review Board, they were, he said, nevertheless "at first blush, an affront to the standards of the civilized society which Hong Kong aspires to be". But then he added:

"But the periods of detention pending the Applicants' removal from Hong Kong should also be seen in their proper context. A9, A10 and A11 never volunteered to be repatriated to Vietnam, and in relation to A8, I have found that the Vietnamese Refugees Board was entitled to believe that his application for voluntary repatriation to Vietnam had been withdrawn. In these circumstances, they could only be repatriated to Vietnam under the Orderly Repatriation Programme. For the reasons I gave earlier when describing the way in which that programme works, the speed with which detainees can be repatriated to Vietnam under it is, to all intents and purposes, out of Hong Kong's hands. Again, I have given the most anxious consideration to the length of the Applicants' detention pending their removal from Hong Kong, but taking these logistical constraints into account, as section 13D(1A)(b) requires me to do, I am satisfied that the time for which the Applicants have been detained has been reasonably necessary to enable them to be considered by the Vietnamese authorities for inclusion in the Orderly Repatriation Programme. Not everyone can be considered at the same time. Not everyone can have their particulars submitted to the Vietnamese authorities at the same time. ... I do not believe that, given the constraints, the attempts to repatriate the Applicants could reasonably have been carried out with greater expedition that they have been, nor do I believe, given the constraints, that detention while those attempts have been made has been for an unreasonable time."

35. The outcome of this analysis seems to be that the length of the periods of detention pending repatriation was irrelevant to legality in the Judge's mind. How, then, did the Judge come to the conclusion that A9, A10 and A11's detention "had become unlawful"?

The evidence in the court below

36. The Judge, at p28 of his judgment, said this:

"The initial evidential burden is undoubtedly on the Applicants. It is for them to produce the evidence to put the legality of their detention in issue. That has been done. Apart from anything else, the length of their detention is such as to raise obvious questions as to its legality. However, once the legality of their detention has been put in issue, the legal burden is on the Respondents. It is for the Respondents to establish that the Applicants' detention is lawful. That means that if the legality of the Applicants' detention is dependent on facts which are in dispute or are not admitted by the Applicants, it is for the Respondents to prove those facts. And if the legality of the Applicants' detention is dependent on what is reasonable in all the circumstances, it is for the Respondents to prove its reasonableness." (Emphasis added).

37. Herein lies the error in the Judge's approach. When the Judge said "Apart from anything else, the length of their detention is such as to raise obvious questions as to its legality", this is contradicted by his finding:

"I do not believe that, given the constraints, the attempts to repatriate the Applicants could reasonably have been carried out with greater expedition ... nor do I believe, given the constraints, that detention while those attempts have been made has been for an unreasonable time."

38. The custodians were, in respect of the four applicants, the two superintendents of the detention centres concerned. They were holding the applicants on the orders of the Director, made under s13D(1). Accepting, as the Judge found, that it was for the Director nevertheless to show that the legal conditions for continued detention existed, that burden was discharged once it was shown that the purpose was for repatriation to Vietnam, and such purpose was not spent. There was no further burden placed on the Director of "proving" that it was more likely than not that Vietnam would eventually accept these four applicants back under the Orderly Repatriation Programme. This involved second-guessing the reaction of a foreign government and was an impossible burden to discharge. But, somehow, through the plethora of affidavits in the court below, this "issue" became engaged. The Director of Immigration was able in fact to show that, in circumstances very similar to those of the applicants, Vietnam had in the past accepted migrants back on repatriation: that is, migrants who were ethnic Chinese, had Taiwanese "passports" and held foreign residents' permits before they fled. This would surely have gone a long way towards discharging the "burden of proof" if the onus had been correctly placed on the Director; but, in any event, as will be shown later, the effect of this evidence was misunderstood by the Judge.

39. We have great sympathy for the Judge, given the sheer weight of material with which he was confronted. There were no pleadings before him and the "issues", such as they were, had to be teased out of the affidavits: there were, for instance nine from Mr Brook, acting for the applicants, ten from Mr Choy, Assistant Director of the Vietnamese Refugee Branch. The Judge was led, in effect, to decide "issues" which were at best peripheral to what he had to decide.

40. The "likelihood" of Vietnam accepting the repatriation of certain classes of persons, originally from that country, and in particular these four applicants, was not the key issue. The real question, as was accepted in the course of argument before us, is this: were the applicants held pending their removal under the Orderly Repatriation Programme or was that purpose spent?

41. There was evidence before the Judge that, in accordance with the Comprehensive Plan of Action, ("CPA") approved at the International Conference on Indo-Chinese Refugees in Jan 1989, persons determined not to be refugees should return to their country of origin. There is no suggestion that any of the applicants involved in these two appeals have any other "country of origin" than Vietnam. The CPA, on its face, requires Vietnam to accept these applicants back, if emphasis were placed on the words "country of origin". Counsel for the applicants has expressly disavowed any suggestion that the Director was not acting in good faith, in attempting to effect their repatriation. The Judge himself found that such attempts were on foot at the time he dealt with the applications for discharge. This was more than enough to establish the legality of their detention.

42. It should perhaps be emphasized that the remedy of habeas corpus is essentially concerned with illegality and abuse of power. No hint of abuse of power is alleged in this case. Any room for arguing illegality becomes extremely limited.

Burden of proof

43. As regards the procedure following the issue of a writ of habeas corpus, the law is clear. When a return to a writ of habeas corpus is made, the return is first read, and then motion is made for discharging the person restrained; and where that person is brought up in accordance with the writ, his counsel shall be heard first: O54 r8 Rules of the Supreme Court.

44. If the return to the writ on its face shows a valid authority for the detention, it is for the applicant to show that the detention is, prima facie, illegal: 1995 Annual Practice Vol. 1 para 54/7/2. See also Lord Scarman in Khawaja at 111D where he said:

"The writ issues as of right summoning into court the person in whose custody the subject is. It gets the custodian into court: but discharge from custody is not possible unless 'the party hath a probable cause to be delivered,' as Vaughan C.J. put it (in Bushell's Case (1670) T.J. 13, p.132) .... This remains the law today and effectually puts habeas corpus in like case with the other form of judicial review".

The returns to the writ

45. Take the case of A9. The return, dated 3 January 1995, states that he was detained by virtue of an order of the Director of Immigration under s13D(1) pending removal from Hong Kong, permission to remain as a refugee having been refused. The detention was prima facie lawful on its face.

46. If any further inquiry into the legality of the detention was legitimate, it should not have gone beyond the point where the Judge found, as a fact, that attempts were still being made for the repatriation of the applicant. This was, in effect, conclusive proof of the legality of the detention, because it plainly showed that the applicant was held pending his removal from Hong Kong.

The Willingness of Vietnam to accept the applicants' repatriation

47. Having reached this point, it is unnecessary for us to analysis the Judge's reasons for finding that "it was much more likely than not that when the particulars of A9, A10 and A11 have been scrutinized by the Vietnamese authorities, the authorities will regard them as non-Vietnamese nationals and will refuse to accept them for repatriation".

48. As we have said, this was the wrong inquiry. Moreover, the "evidence" that Vietnam was not prepared to accept detainees whom it regarded as non-nationals was in any case misunderstood by the Judge in at least one important respect, vitiating his conclusion that the evidence was "compelling". The sources of evidence identified by the Judge were:

(i) What the detainees themselves say. But this was, at best, the expression of opinion of interested parties. The applicants could have tested the proposition by volunteering to return to Vietnam. None except A8 did, but he later withdrew his application and his name and particulars were then included in the Orderly Repatriation Programme as well.

(ii) What the officials of the UNHCR told the detainees when applying for voluntary repatriation: that they should not disclose their "Taiwanese nationality" ("nationality" which conferred no right of abode in Taiwan or anywhere else). The Judge rightly said he attached no weight to this.

(iii) What the Vice-Consul of the Vietnamese Consulate told Mr Brook, summarised by the Judge thus: "... that Vietnam would not accept the repatriation of people whom it does not regard as Vietnam nationals, even if they are married or otherwise related to Vietnamese national".

But the basis for this being a statement of fact, rather than a mere expression of opinion, was never established. It was inherently improbable that a Vice-Consul could have been responsible for national policy. Its admissibility under O38r29(1) was highly questionable.

49. The Director of Immigration was able to show, from his records, that out of 43,600 Vietnamese migrants returned under both schemes, a total of 2,469 were ethnic Chinese. A sample check of 50 cases was then made, and it was found that out of the 50 cases three returned under the voluntary scheme had Taiwanese passports (or similar documents) and one under the Orderly Repatriation Programme had a Taiwanese passport. If one extrapolated these four cases as representing 8% of the sample, it would suggest that many such 'Taiwanese nationals' have in fact been accepted by Vietnam for repatriation in the past.

50. The Judge, in analysing and then discounting the weight of this evidence made a mistake: as was acknowledged by Mr McCoy in this Court. The Judge thought that there was only one example of repatriation under the voluntary scheme: not three. The significance of the mistake is this: under the Orderly Repatriation Program, the forms do not disclose nationality or ethnicity. This led the Judge to conclude:

"... it could easily be the case that the information was not checked against the detainee's local household registration on his residential file as thoroughly as it should have been ...".

51. Such an error on the part of the Vietnamese authorities might have been made in one case: the Judge would probably not have come to the same conclusion if he had realised that it involved all three cases. This mistake on the Judge's part impeached his "findings of fact" to a large extent.

52. Overall-all, there is this dominant fact: the particulars concerning the four applicants were sent to Vietnam only nine days before they applied for habeas corpus. The Vietnamese authorities simply had no time to react before A9, A10 and A11 were ordered to be released from detention.

53. Even on the facts, such as they were, we are by no means satisfied that the Judge came to the right conclusion. But, as is apparent from what we have said above, we do not base our decision on this.

CA 65/95

54. A8's appeal turned on one point: that a "blanket" order for detention upon arrival was unlawful. The effect of this submission is that A8, since his arrival in December 1989 without travel documents, has been unlawful detained. The implications of this submission, if it be valid, are startling. We have already dealt with this point in our analysis of Sears J's judgment in Pham Van Ngo. We reject the submissions made in A8's behalf, and uphold the Judge both in his reasoning and in his conclusion.

Result

55. The Superintendent of Tai A Chau Detention Centre's appeal in CA 31/95 is allowed. The Judge's order releasing A9, A10 and A11 from detention is quashed. We order in place of the Judge's order in CA 31/95 that the order of the High Court dated 19 December 1994 for the issue of writs of habeas corpus in respect of A9, A10 and A11 be discharged.

56. A8's appeal in CA 65/95 is dismissed.