In re Ly Duc and Others

1995 M.P. No. 232

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

____________

_______________

J U D G M E N T

_______________

1. On 24th January, I ruled in HCMP 3417/94 that the detention under section 13D(1) of the Immigration Ordinance (Cap. 115) of 3 migrants from Vietnam, pending their removal from Hong Kong, had become unlawful. I ordered their immediate release from detention. Mr. Graham now applies ex parte, but on notice, for writs of habeas corpus to issue in respect of 21 additional migrants from Vietnam, who were also ordered to be detained under section 13D(1) pending their removal from Hong Kong, on the grounds that their cases are factually indistinguishable from the cases of the migrants who have been released.

2. Having now read the affirmation of Mr. Brook in support, I propose to make an order for the writs to issue, but for the benefit of those present who are not lawyers, I should add that that does not mean that I think that the 21 new Applicants are being detained unlawfully. It means only that I think that the argument that they are being detained unlawfully is sufficiently strong to warrant a full hearing on the question at which the Respondents can present their arguments as well.

3. Mr. Graham asks for that full hearing to take place today. That application is hopeless. In order to determine whether the cases are factually indistinguishable, I must give the Respondents the opportunity to file such evidence as they wish as to the background of each of the 21 Applicants who now seek their release. I cannot assume that their cases are indistinguishable simply because Mr. Brook asserts that they are. For all I know, the cases of a few, some or all of these 21 new Applicants may be in distinguishable from the case of the one Applicant, A8, whose release I did not order in HCMP 3147/92.

4. As for when the hearing should take place, I agree with Mr. Marshall that it should not take place until the Court of Appeal has given judgment in the appeal, which is going to be lodged tomorrow, from the judgment I delivered on Tuesday. I am entirely satisfied that the question whether the continued detention of these 21 Applicants is lawful is going to depend to a great extent on whether my conclusion that the continued detention of the 3 Applicants, who I released on Tuesday, was unlawful was correct. On Mr. Marshall's undertaking on behalf of the Respondents to file the Notice of Appeal by 4.30 p.m. tomorrow, and upon Mr. Marshall undertaking on behalf of the Respondents to pursue the appeal with all reasonable expedition, I direct that these applications be heard on their merits on a date to be fixed, but not before judgment has been given by the Court of Appeal in any appeal from my judgment of 24th January. Any period of unlawful detention is, of course, a wrongful denial of liberty, but these 21 Applicants have all been detained for some time, and if the applications are heard on their merits soon after the Court of Appeal has delivered judgment, the proportionate length of their detention will not have been significantly increased.

5. Finally, upon the assumption that I have jurisdiction to grant the Applicants bail until the hearing of their applications takes place on their merits, in the exercise of my discretion, I refuse to grant them bail.