Attorney General v. Pham Si Dung

1993, No. MP 2626

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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H E A D N O T E

Immigration - Criminal Law - whether Court has power to detain Vietnamese refugee in Hong Kong under s.32(4)(b) of the Immigration Ordinance for the purpose of giving evidence at a criminal trial - whether Court can only make order if there is in force a valid order by the Secretary of Security under s.32(4)(a) - whether Secretary's order can be valid in absence of an order by the Director of Immigration under s.13E of the Immigration Ordinance.

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J U D G M E N T

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1. When this case was opened it appeared to raise an exquisite tension between the right of an accused person charged with murder to be able to call all relevant evidence in his favour and the right of a defence witness in the trial to go back to the Vietnam, from whence he came, without being required to be detained any further until it was time for him to give evidence.

2. By the time the argument was concluded, the case had taken on an additional dimension because it was contended that there were defects in the way the matter came before me and these raised substantial jurisdictional questions.

3. The story begins when Pham Si Dung (the respondent), no doubt with others, took his life in his hands and made the dangerous sea voyage from Vietnam to Hong Kong. He arrived in Hong Kong on 25th July 1991. He asked to be screened with a view to seeing whether he established a claim for refugee status. Pending screening, he was detained at Sek Kong Detention Centre. Thereafter he was moved to Chi Ma Wan Detention Centre but he is now detained at the High Island Detention Centre.

4. On 3rd February 1992, he shared a bed space with Pham Hoa (D12) at Sek Kong. During the night of 3rd/4th February 1992, there was a most serious incident at the camp. A fire was started and a number of people were killed. Subsequently, 13 people, including Pham Hoa, were indicted for murder and riot.

5. The respondent was interviewed on 23rd September 1992 at Chi Ma Wan Detention Centre and he gave a signed statement to a solicitor acting for D12. The effect of the statement was to place D12 in the bed space at the time the commotion commenced and thereafter and thus is inconsistent with the evidence, already given at trial, that D12 was involved in the murder.

6. On 25th September 1992, solicitors acting for D12 served upon the Crown an alibi notice based upon the respondent's statement.

7. The trial of the 13 accused with murder and riot commenced on 1st November 1992 before Gall J. and a jury. As at 22nd July 1993, there are still 18 further Vietnamese identification witnesses to give evidence together with a further 20 more formal witnesses. I have been told that submissions at the close of the Crown case are likely. The trial restarts after a short recess on 9th August 1993 and continues until Christmas when there will be a 3- week vacation. The judge sits from 9.00 a.m. to 1.30 p.m. with 2 breaks totalling about 45 minutes. Due to the usual problems connected with long trials (including in this case a recent witness strike) approximately 75% of available sitting time has been utilised.

8. The Crown estimate that the case will end by Chinese New Year 1994. The defence, through Mr. Walters, who appears for D12 and whom I heard as amicus curiae, are of the view that Easter 1994 is a more likely conclusion date. I propose to assume that the trial will end sometime between Chinese New Year and Easter 1994.

9. Before the respondent's application for refugee status was heard and determined, the respondent applied, in February 1993, to return to Vietnam voluntarily. It is the nature of his detention since that time which is in issue in this case.

10. In his affirmation dated 16th July 1993, the respondent states that he left behind in Vietnam his mother, who is now very ill, his wife, 2 children and his sister. All these relatives live together in Da Nang. He states that the reason why he gave up his claim to refugee status was because he had been informed by his sister that his mother was very ill and may be dying. He concludes his affirmation by saying that he does not now wish to give evidence and he wishes to return to Vietnam. He does raise an issue in his affirmation to the effect that he had been told by D12's solicitor that he could go back at any time and it was on this basis that he gave the statement. I have not investigated this matter. The simple fact is that he did give a statement and that has never been retracted.

11. Before explaining how this matter comes before me, it is, I fear, necessary to have regard to a number of sections in the Immigration Ordinance, Cap. 115, which deal with Vietnamese refugees.

Section 13D

12. This section makes provision for the detention of residents or former residents of Vietnam who arrive in Hong Kong without a valid visa. This detention is stated to be "pending a decision to grant or refuse him permission to remain in Hong Kong as a refugee or, after a decision to refuse him permission to remain in Hong Kong, pending his removal from Hong Kong..."

Section 13E

"(1) The Director may, at any time order any Vietnamese refugee or person detained in Hong Kong under Section 13D to be removed from Hong Kong.

(2) An Immigration Officer or a Chief Immigration Assistant may remove from Hong Kong in accordance with Section 24 any person ordered to be removed from Hong Kong under subsection (1)."

[Section 24 deals with directions to owners of ships or aircraft.]

13. I now turn to deal with the crucial Section 32. I set out the whole section although only sub-section (4) is relevant to the issues raised before me.

"32. Detention pending removal or deportation

(1) A person who is to be removed from Hong Kong under section 18 or 13E - (Amended 42 of 1982 s.8)

(a) may be detained until he is so removed, and may be so detained for not more than 48 hours under the authority of an immigration officer and thereafter under the authority of the Director, and

(b) may, if he is on board a ship or aircraft, be removed therefrom under the authority of an immigration officer for detention under this subsection.

(1A)Where consideration is being given to applying for or making a removal order in respect of a person, that person may be detained as provided for in subsection (2) or (2A), whichever is appropriate in the particular case. (Added 62 of 1980 s.6)

(2) A person may be detained under the authority of the Secretary for Security -

(a) for not more than 14 days pending the making of an application to the Governor for a removal order under section 19(1)(a) in respect of that person; and

(b) for not more than a further 14 days pending the decision of the governor as to whether or not a removal order should be made under section 19(1)(a) in respect of that person. (Replaced 62 of 1980 s.6)

(2A)A person may be detained pending the decision of the Director of Immigration or Deputy Director of Immigration as to whether or not a removal order should be made under section 19(1)(b) in respect of that person -

(a) for not more than 7 days under the authority of the Director of Immigration or Deputy Director of Immigration;

(b) for not more than a further 21 days under the authority of the Secretary for Security; and

(c) where inquiries for the purpose of such decision have not been completed, for a further period of 21 days under the authority of the Secretary for Security, in addition to the periods provided under paragraphs (a) and (b). (Added 62 of 1980 s.6)

(3) A person in respect of whom a removal order under section 19(1)(a) or a deportation order is in force may be detained under the authority of the Secretary for Security pending his removal from Hong Kong under section 25. (Amended 15 of 1980 s.4; 62 of 1980 s.6)

(3A)A person in respect of whom a removal order under section 19(1)(b) is in force may be detained under the authority of the Director of Immigration or Deputy Director of Immigration pending his removal from Hong Kong under section 25. (Added 62 of 1980 s.6)

(4) Notwithstanding subsections (1), (1A), (2), (2A), (3) and (3A), a person who is to be removed from Hong Kong under section 18 or 13E or in respect of whom a removal order or a deportation order is in force may be detained - (Amended 62 of 1980 s.6; 42 of 1982 s.8)

(a) under the authority of the Secretary for Security for not more than 28 days; and (Amended 15 of 1980 s.4)

(b) by order of a court on the application of the Attorney General for further periods, not exceeding 21 days upon any one application,

for the purpose of giving evidence at the trial of any offence or of facilitating inquiries into any offence or suspected offence. (Added 42 of 1979 s.3)

(5) In subsection (4), "court" includes the District Court and a magistrate. (Added 42 of 1979 s.3)"

Section 36

14. This enables an immigration officer or a police officer to require any person detained under, inter alia, section 32 to enter into recognizance in such amount and with such number of sureties as the Director or such police officer may reasonably require. This section is stated to be an alternative to detention.

The respondent's detention

15. In the light of the above statutory provisions, it is now necessary to have regard to the actual orders made in the case of the respondent. I will deal with them in chronological order.

(1) On 26th July 1991 an order was made pursuant to s.13D(1) detaining the respondent pending a decision to grant or refuse him permission to remain in Hong Kong as a refugee. This order was handed in by Mr. Bailey, who appeared for the Attorney General. It had not previously been exhibited.

(2) On 25th February 1993, the Secretary for Security made an order in the following terms:

"whereas Pham Si Dung is a person who is to be removed from Hong Kong under s.13E of the Immigration Ordinance; and

UPON consideration of the matter sat out in the letter dated 25th February 1993 from the Ada Y.M. Chan & Co., I hereby exercise the power Yested in me by s.32(4)(a) of the Immigration Ordinance, Cap. 115 and authorize the detention of the said

Pham Si dung

for the purpose of section 32(4)(a) for a period of not more than 28 days commencing on the date of this authorization."

(3) On 25th June 1993, Mr. Choy, an Assistant Director of Immigration, made 2 orders in the following terms.

I, CHOY Ping-tai, Assistant Director of immigration, in exercise of the power conferred on me under section 13E of the Immigration Ordinance, Cap. 115, Laws of Hong Kong, hereby order the removal from Hong Kong to Vietnam of three (3) Vietnamese

as per attached list who are detained under section 13D of the Ordinance, which removal will be effected after the conclusion of their testimony in Hong Kong High Court Case No. 201 of 1992, and pursuant to section 32(1)(a) of the Ordinance I authorize their detention until they are so removed.

Dated 25th June 1993

Sgd. ----------------------------- (CHOY Ping-tai) Assistant Director of Immigration "

To : Mr. PHAM SI DUNG detained in Hong Kong under Section 13D of the Ordinance

TAKE NOTICE that pursuant to Section 13E of the Immigration Ordinance, an Assistant Director of Immigration has ordered your removal from Hong Kong to Vietnam, which removal will be effected after the conclusion of your testimony in Hong Kong High

Court, Case No. 201 of 1992

Dated 26th June 1993

Sgd. -------------------------- for Director of Immigration "

(4) On 23rd April, 13th May, 2nd June, 23rd June and 12th July 1993, Gall J. made identical orders in relation to the respondent in the following terms:

" IN THE HIGH COURT OF HONG KONG IN THE MATTER of High Court Case No. 201 of 1992

and

IN THE MATTER of an application under Section 32(4) of the Immigration Ordinance, Chapter 115

and

IN THE MATTER of Pham Si Dung (VRD 459/27/91, f/n 131564)

ORDER

Upon reading the Application of the Hon. Attorney General and the affidavit of Ada Y.M. Chan, Solicitor of Messrs. Ada Y.M. Chan & Co. in support thereof, it is ordered that the said Pham Si Dung be detained until the conclusion of the proceedings or for a period of not more than 21 days, whichever is the earlier, commencing on the 23rd day of April, 1993 for the purpose of giving evidence in the trial of Pham Hoa ("the 12th Accused") for offences of Murder contrary to Common Law and Riot contrary to Sections 19(1) and (2) of the Public Order Ordinance, Cap. 245, Laws of Hong Kong."

16. The 28 days Order of Detention made by the Secretary for Security expired on 25th March 1993, but the first order made by Gall J. was not until 23rd April 1993. Mr. Bailey quite properly pointed out this gap to me. I do not think that this period between the two orders affects the matters with which I have to deal, but no doubt this has been noted by those representing the respondent and they will consider what, if any, they can get out of it.

The present application

17. The latest order of Gall J. expires on 5th August 1993. On 14th July 1993, the Attorney General made application for an order in precisely the same terms as had been granted previously by Gall J.

18. When Mr. Bailey opened this matter on behalf of the Attorney General, there were only 2 affirmations before me. The first was from Ada Y.M. Chan. The Attorney General relied upon that affirmation in support of his application. The second affirmation was that of the respondent. During the course of the hearing, effectively at the invitation of Mr. Dykes, who appeared for the respondent, Mr. Bailey put in two further affidavits. The first was from Miss Crabtree, who is the officer authorized by the Attorney General to exercise and discharge his duties under s.32(4) of the Immigration Ordinance. The second was from Mr. Power who is one of the prosecuting counsel in the murder trial. (Mr. Power's affidavit was in a somewhat unusual form but no point was taken about it).

19. At the outset of his submissions, Mr. Dykes made a complaint that all of the relevant orders had not been exhibited. To remedy this, Mr. Bailey handed in copies of the original order dated 26th July 1991 and the s.13E order dated 25th June 1993. Mr. Dykes had not previously had sight of these orders.

20. During the course of the first day of argument, Mr. Dykes made a number of submissions which I summarise as follows;

(1) The power exercisable by the Attorney General under s.32 (4)(b) can only be exercised where the detainee is to be called as a prosecution witness;

(2) Alternatively, if the basis of the application is that the Attorney General believes the respondent is a witness capable of belief, the application sought should only be allowed so as to enable the respondent to be called as a Crown witness at the earliest opportunity;

(3) Because the liberty of the subject is involved, the Attorney General should be required to prove every jurisdictional fact necessary to ground the application and he should further be required to satisfy the court of the necessity for the order as opposed to its convenience;

(4) The legislative history of s.32(4) makes clear that the section was introduced solely for the purpose of keeping illegal immigrants in Hong Kong long enough to give evidence against those responsible for aiding and abetting them. Under the decision of Pepper v. Hart [1992] 3 WLR 1032, Mr. Dykes invited me to look at the speech of the Secretary for Security when introducing the Bill which contained what is now s.32(4);

(5) In making this application, the Attorney General is bound to advance his own grounds for seeking the order and he cannot rely upon the reasons advanced by a 3rd party unless he expressly adopts them;

(6) It would be wrong to make a detention order under s.32(4) if there is no prospect of the detainee being able to give evidence within a reasonable time. Lawful detention can become unlawful with the fluctuation of time.

Discretion

21. Mr. Dykes submitted that I should not exercise my discretion for the follow reasons;

(a) Had it not been for the trial, the respondent would have been returned to Vietnam shortly after his decision in February 1993 to abandon his claim to refugee status;

(b) It is unlikely that he will be required to give evidence until next year and this will have involved approximately 12 months' detention. Even from today's date, he will need to be detained for a further 7 months;

(c) The respondent has committed no criminal offence. He certainly has not been charged with any. If his detention lasts 12 months, this would be equivalent to an 18 months prison sentence after remission;

(d) The respondent wishes to return to Vietnam for strong and powerful personal reasons;

(e) The respondent does not wish to give evidence.

The jurisdictional point

22. At the beginning of the 2nd day of argument, Mr. Dykes told me that he had had an opportunity to consider overnight the 2 orders handed in the day before by Mr. Bailey and that in the light of his consideration of those documents, he felt obliged to raise an important point which, he submitted, went to my jurisdiction to make the order sought. He made the submission and Mr. Bailey responded. Mr. Dykes told me that he had discussed the point with the respondent who gave him firm instructions to take the point even if the result of taking it successfully might postpone a decision in the respondent's favour.

23. Mr. Dykes' submission runs as follows. The Secretary for Security can only make his order for detention for 28 days under s.32(4)(a) in cases where an order has been made (for present purposes) under s.13E. When the Secretary for Security made his order on 25th February 1993, there was not in existence any order under s.13E relating to the respondent. The one and only order made under s.13E was made by Mr. Choy on 25th June 1993, some 4 months after the Secretary for Security's order. The making of an order under s.13E is, Mr. Dykes submitted, a condition precedent to the exercise of the Secretary's power to detain for up to 28 days. It must follow, therefore, that the Secretary's order was a nullity.

24. If the Secretary's order was a nullity, then there can be no jurisdiction in the court to make an order under s.32(4)(b) at the request of the Attorney General for further periods of detention of up to 21 days. The Attorney General's application is only for "further periods", i.e. periods additional to the period already ordered by the Secretary. This conclusion, it is submitted, follows inexorably from the plain words of s.32(4)(b). On this contention, it would not be permissible for the Attorney General to make application unless there had previously been a valid order made by the Secretary.

25. On the basis of these submissions, Mr. Dykes submitted that Gall J. had no jurisdiction to make any of the orders that he did and consequently neither have I. He submitted therefore that this application is misconceived.

26. I hasten to add that Gall J. was never shown the s.13E order dated 25th June 1993 as it was produced for the first time before me. I think that this is regrettable. When the liberty of the subject is involved (even if an illegal immigrant), it is incumbent upon those seeking further detention to place all relevant material before the court charged with deciding the question of further detention. I am sure that if the order dated 25th June 1993 had been placed before Gall J., together with the Secretary's earlier order, this jurisdictional point would have become apparent and would have been ruled upon some time ago.

27. The various orders made by Gall J. under s.32(4)(b) have never been appealed and thus are on their face lawful. Orders made by a High Court judge are not amenable to an application for judicial review and there appears to be some doubt as to whether there was, in any event, any route for appeal against an order of a High Court Judge made under s.32(4)(b). I do not think I have to decide whether or not Gall J.'s orders are technically valid or invalid. The simple point is that apart from the last, each one has expired, and I am being faced with a fresh application where I am free to consider this jurisdictional point. It may well be that the order made by the Secretary for Security is amenable to an application for judicial review, but again that is not a matter which is presently before me.

28. I have to decide whether there is any force in Mr. Dykes' jurisdictional argument because, if there is, clearly I cannot make the order sought. How then does Mr. Bailey for the Attorney General attempt to overcome this jurisdictional argument? Mr. Bailey conceded that when the Secretary made his order, there was not in force any written order under s.13E relating to the respondent. However, he submitted that this did not matter because the respondent was "a person who is to be removed from Hong Kong under s...13E...". He points out the different language used in the section. On the one hand, there is a phrase "is to be removed from Hong Kong" under sections 18 or 13E and this has to be contrasted with the next part of the sentence which refers to removal orders or deportation orders in force. He submits that this language is some support for his submission, that it is not necessary for there to have been an order under s.13E but only that the respondent came within that category of persons who, as night follows day, was to be removed from Hong Kong at some stage in the future under s.13E.

29. I cannot accept this argument. It seems to me that the only proper way to read sub-section 4, so far as it is relevant to this case, is that it refers to a person in respect of whom an order under s.13E has been made. To read these words in the literal sense for which Mr. Bailey contended would be to create a most uncertain position. It must not be forgotten that we are here dealing with the liberty of an individual. It is essential when dealing with such matters that the authorities should act clearly in accordance with the law and that the person affected should know precisely, under which section of the Ordinance, he is being detained or removed. If one takes Mr. Bailey's argument to its ultimate logical conclusion, it would not strictly be necessary for the Director ever to make an order under s.13E because he would be able to rely upon his intention or practice to remove this respondent under that section without expressly making such an order. Clearly, that is not the position because an order was in due course made under this section. I find it impossible to conclude that at the date when the Secretary made his order for detention of this defendant for 28 days, there was in force an order under s.13E or that sub-section 4 of s.32 had, in any other way, been complied with and therefore the Secretary's order would appear to be invalid as a necessary condition precedent to the exercise of that power had not been met. I believe that it follows that if the Secretary's order is not valid, then there can be no jurisdiction in this court to make any further orders for detention as sought by the Attorney General. I am quite satisfied that it is a condition precedent to the making of any order by the court that there had previously been a valid order by the Secretary for Security under s.32(4)(a). As there was no such order validly made, I do not believe that I have jurisdiction to deal with this application.

30. I have considered very carefully whether I should go on and indicate my views as to the substantive arguments raised by both sides. Having given the matter very careful consideration, I think it would be unwise to do so because it may well be that the Director and the Secretary will regularize the position, and a renewed application to another judge for an extension for 21 days may be made. It would, in those circumstances, be wrong for me to attempt, in any way, to bind the free exercise of the discretion which that other judge would have to make. He will have to consider all the arguments which were addressed to me and rule upon them in the light of the legal submissions and the facts then existing when the matter is before him.

31. I propose only to say this. I have considerable sympathy for the position of this respondent. Whether he should be detained in Hong Kong until he can give evidence is a matter which, as I have said, will have to be considered by another judge when the position has been regularized. An order may or may not be made under section 32(4)(b). However, I find it difficult to see why this respondent, who has for some months now been kept in Hong Kong against his will, should be further detained in a closed camp. I have no jurisdiction to grant him bail. That can only be done by the Director or by a police officer under s.36 of the Immigration Ordinance. However, I would have thought that it is not beyond the wit of man to devise some arrangements which would enable this respondent to be granted some form of limited visa until such time as he concludes his evidence. No doubt, this will involve recognizances and possibly very stringent reporting restrictions. Without giving any consideration to the legal arguments raised about the lawfulness of his present detention, the simple fact of the matter is that, in a civilized society, every effort should be made to ensure that innocent people are not detained in closed camps any longer than is humanly necessary. I hope that careful consideration will be given to the observations which I have just made. I am also aware of the fact that the continued detention of this respondent has caused Gall J. considerable anxiety and that is why the matter was placed before me so that the legal position could be tested. It is, of course, unfortunate that I have not been able to rule on that matter because of the lack of jurisdiction to make the order which I have found to exist.

32. I should add that an affidavit of Mr. Power, Crown Counsel, prosecuting before Gall J., was placed before me and this set out the various possibilities which have been examined in relation to this respondent's evidence. Suffice it to say at this stage, that there has not been any agreement between the prosecution and the defence as to how this respondent's evidence can be given in any other way or at any other time, save as part of the defence case in Hong Kong at the appropriate time. As this matter may take sometime to resolve, I earnestly hope that all concerned will try once again to see if there is any solution to this problem so that the respondent can give his evidence in some other acceptable way which will enable him to return to Vietnam before the Spring of 1994.

33. In all the circumstances, therefore, I decline to make the order sought in the summons before me. I will hear the parties on any consequential directions which might be required.