ATTORNEY GENERAL v. BUI THI NGOAN AND OTHERS

1993 No. MP3311-3316 &
MP3366-3391

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

___________

______________

J U D G M E N T

______________

1. This case highlights the tension which arises between the right of the Crown to be able to call all relevant evidence at the trial of persons charged with serious offences, and the right of a prosecution witness in a criminal trial to return to Vietnam without being detained any longer until it is time for him or her to give evidence. Kaplan J. and Deputy Judge Yeung dealt with a similar problem in relation to a defence witness in the same trial in Attorney General v. Pham Si Dung (MP 2626/93 and MP 3111/93). However,

(i) the jurisdictional problems which caused Kaplan J. to decline to make the order sought do not apply to this case because in this case orders for removal by the Director of Immigration under Section 13E of the Immigration Ordinance (Cap. 115)("the Ordinance") preceded orders for detention by the Secretary for Security under Section 32(4)(a) of the Ordinance; and

(ii) Deputy Judge Yeung's finding that Section 32(4)(b) of the Ordinance did not give him the power to order the witness' detention in that case applied only to defence witnesses.

Since the jurisdictional problems do not apply to this case, the only question which arises relates to the exercise of my discretion.

2. The relevant facts are these. During the night of 3rd/4th February 1992, a fire broke out at the Shek Kong Detention Centre for Vietnamese Migrants. Many people died. Subsequently, a prosecution arising out of the incident was commenced, and 13 people were indicted on charges of murder and riot. The trial is an important one for Hong Kong, and is the most important trial in a series of trials arising out of the incident, the other two being trials in the District Court. The Respondents to whom the 32 applications before me today relate are all Vietnamese migrants. Until today, they were all believed to be capable of giving material evidence at the trial on behalf of the Crown. They have all been named on the back of the indictment.

3. The trial began on 17th December 1992 before Gall J. and a jury. For a trial of its magnitude, it got under way commendably quickly. That, no doubt, was in part to accommodate the desire of many of the witnesses to return to Vietnam as soon as possible. As it is, the Crown's case is expected to be concluded by December 1993, though it has to be recognised that that expectation might not be realised.

4. The 32 Respondents arrived in Hong Kong on various dates between 18th May 1991 and 1st October 1991. They all applied, on various dates at the end of 1991 or the beginning of 1992, for voluntary repatriation to Vietnam. However, they have all been detained, and continued to be detained, in various detention centres for Vietnamese migrants pursuant to

(a) various authorisations of the Secretary for Security purportedly given under Section 32(4)(a) of the Ordinance, and

(b) various orders of the Court purportedly made pursuant to Section 32(4)(b) of the Ordinance.

5. The reasoning behind Kaplan J.'s ruling rendered those authorisations and orders invalid. However, since his ruling, valid authorisations of the Secretary for Security for the detention of the first 6 Respondents for a period of 28 days from 27th August 1993 have been given, and valid orders were made by Woo J. for the further detention of the first 6 Respondents up to today. Moreover, valid authorisations of the Secretary for Security for the detention of the other 26 Respondents for a period of 28 days expiring today have been given. It is in these circumstances that the Attorney General now seeks orders for the detention of 20 of the 32 Respondents for a further period not exceeding 21 days pursuant to Section 32(4)(b) of the Ordinance.

6. The applications relating to the other 12 Respondents have today been withdrawn because it is no longer proposed to call them to give evidence at the trial. Those 12 applications are MP3368/93, MP3369/93, MP3370/93, MP3372/93, MP3373/93, MP3377/93, MP3379/93, MP3381/93, MP3383/93, MP3384/93, MP3387/93 and MP3388/93. In relation to the remaining 20 applications, I give the Attorney General leave to amend the notices of originating motion to substitute, for the dates contained in the notices, 8th October 1993.

7. There is, regrettably, no half-way house in this case. That is because the Director of Immigration has decided that there is no possibility of the Respondents being accommodated in Hong Kong outside the detention centre system. That is a matter for him and not for the Courts. The power accorded by Section 36(1) of the Ordinance to require a person (who, though being liable to be detained under Section 32 of the Ordinance, is not being so detained for the time being) to enter into a recognizance is given only to immigration and police officers. The consequence is that if orders are not made pursuant to Section 32(4)(b) the Respondents will be repatriated to Vietnam as soon as it is reasonably practicable to effect their removal.

8. The Respondents are not represented today. That is because their applications for legal aid have been refused. However, Miss Chung has been instructed by the Director of Legal Aid to appear today before me to provide me with any assistance I may require. She has told me that the Director of Legal Aid is prepared to offer legal aid to those of the Respondents who are unwilling to remain in Hong Kong until they give their evidence. 4 of the Respondents, that is, those in MP3376/93, MP3380/93, MP3389/93 and MP3390/93, have told me today that they are willing to remain in Hong Kong until they give their evidence, and that they do not oppose the applications being made today by the Attorney General.

9. In my view, there are potential difficulties about making the orders sought by the Attorney General by consent, though the fact that the 4 Respondents are willing to remain in Hong Kong until they give their evidence is, of course, a powerful and compelling factor to be taken into account. As for the remaining 16 Respondents who have told me that they are unwilling to remain in Hong Kong until they give their evidence and to whom, therefore, the Director of Legal Aid is prepared to offer legal aid, they have told me that even though they may be represented on any future application, they still wish to oppose the applications before me today. I have therefore taken it upon myself to consider what points can be made on the Respondents' behalf.

10. In that connection, I have read the skeleton argument of the Respondent in Pham Si Dung, prepared by his counsel, Mr. Philip Dykes. An important point is taken in para. 35 of the skeleton :

"It is wrong to make a detention [order] under section 32(4) of the Immigration Ordinance if there is no prospect of the detainee being able to give evidence within a reasonable time. Detention should not become indefinite by virtue of the incremental effect of successive orders of detention. Lawful detention may become unlawful simply with the effluxion of time : R. v. Governor of Durham Prison ex p. Singh [1984] 1 WLR 704 at 706 D - F : Liew Kar-seng v. Governor-in-Council [1989] 1 HKLR 607 at 609 E - J : R. v. Governor of Richmond Remand Centre ex p. Ashgar [1971] 1 WLR 129 at 132H, 133 A-B, E."

11. I have read the passages in those cases. In my view, the principle which can be extracted from them is a relatively narrow one, namely, that any power of detention conferred upon the executive or the Courts must be impliedly limited to the period which is reasonably necessary to achieve the purpose for which the detention is sought. That is a very different principle from the one for which Mr. Dykes contended, which was that if the purpose for which the detention is sought cannot be achieved within a reasonable time, the detention becomes unlawful. However, without deciding what the correct principle is, I propose to proceed today on the assumption most favourable to the Respondents, namely,

(i) that if there is at present no prospect of the Respondents being able to give evidence within a reasonable time, the detention orders sought should not be granted;

(ii) that in determining whether there is, at present, any prospect of them being able to give evidence within a reasonable time, a factor to be taken into account is the length of time which has elapsed since the date when they would otherwise have been repatriated to Vietnam.

12. Mr. Moorfoot for the Attorney General has told me that that would have been a few months after they had applied for voluntary repatriation. However, they would not all have been repatriated at the same time. Repatriations are staggered to take account of the availability of transport, but I think I ought to assume, for the purpose of these applications, that the Respondents would have been repatriated by June 1992. Moreover, since the order in which the Crown proposes to call the Respondents as witnesses is described as "fluid", each of the Respondents could be the last of the witnesses to be called. I have therefore assumed, for the purpose of these applications, that there is no prospect of any of the Respondents being able to give evidence significantly before the end of December, but that there is every prospect of them having given their evidence by then.

13. I bear in mind in the Respondents' favour that the time which has elapsed since the date when they would otherwise have been repatriated to Vietnam is considerable. I bear in mind also the strong and powerful personal reasons which the Respondents have told me make them want to return to Vietnam as soon as possible. They include the harsh conditions of life in a closed camp, the fear of reprisals which may be taken against them because they are potential witnesses for the Crown, the lack of schooling for their children, and their natural desire to return to their families in Vietnam. I bear in mind that they have not been charged with any criminal offences, and that if their detention continues until the end of December, their detention since the time they would otherwise have been repatriated to Vietnam will be about 18 months, which is equivalent to a prison sentence of 27 months after remission. I also bear in mind, in relation to the 16 Respondents who are unwilling to remain in Hong Kong to give evidence, that they are unwilling witnesses for the Crown, and given the choice would prefer not to give evidence at all. Finally, I bear in mind the fundamental human right in a civilized society of any person not to be detained in a foreign country against his will when he has not been found guilty of any conduct justifying his detention.

14. However, in the balancing exercise which I have to conduct, the scales, in my view, weigh heavily in favour of granting the detention orders sought. There is a powerful and compelling public interest in ensuring the proper administration of justice by avoiding the possibility of a long criminal trial being aborted after an enormous amount of time and expense has been incurred. That public interest also requires the Court, if it can, to take such lawful steps as are within its power to ensure that at an important criminal trial in which Defendants face charges of the utmost gravity all relevant and admissible evidence is available for consideration by the jury.

15. In my view, these factors outweigh the Respondents' desire to return to Vietnam as soon as possible. It is true that they have not been found guilty of any conduct justifying the postponement of their return to Vietnam. But it must be remembered that they chose to leave Vietnam in the first place. There is every prospect of the Respondents being able to give their evidence within the next 12 weeks, and I regard that as a reasonable time when I take into account the length of time which has elapsed since they would otherwise have been repatriated to Vietnam. The amount of time for which the Respondents have had to be detained is not because of delay on the part of those responsible for the prosecution, but because our system of criminal justice causes trials of this kind to take a considerable time.

16. For these reasons, I propose to grant these applications. I order that the 20 Respondents in those applications which have not been withdrawn be detained, pursuant to Section 32(4)(b) of the Ordinance, for a period not exceeding 21 days from 8th October 1993.

17. As a matter of form, the orders I make today govern the next 21 days only. However, the factors which I have taken into account today are the factors which would have to be taken into account in 21 days' time when the Attorney General makes further application under Section 32(4)(b) in relation to those of the 20 Respondents whose evidence by then has not been completed. The exercise of the Court's discretion will then have to be considered afresh, assisted by such further representations as counsel instructed on behalf of the Respondents may choose to make. I do not formally reserve any further applications under Section 32(4)(b) in relation to these Respondents to myself, but I recommend to the Clerk of Court that it is desirable, if the lists can be juggled properly, for there to be continuity in these cases. That would best be served by the same judge hearing all future applications.