RE PHAM VAN NGO

Headnote

Administrative and Constitutional Law - habeas corpus - Vietnamese Refugees - detention pending decision to remain in Hong Kong - lawfulness - exercise of discretion - promise by Government to refugees - legal effect and implications - international obligations to refugees - possibility of 'empty order' - considerations of subsequent detention - Habeas Corpus Act 1679 S5 - Immigration Ordinance S13D.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS NO. 3005/90

Introduction

1. This sad case highlights both the tragic plight of Vietnamese refugees fleeing from their country and searching for a new life, and the burden which Hong Kong is shouldering in seeking to accommodate and deal with the thousands of refugees who come to this densely crowded country.

2. I wish I could wave a judicial wand which would alleviate the suffering which these boat people undergo, and would reduce Hong Kong's burden, which at times must seem both to its citizens and Government to be intolerable. Unfortunately, all I can do is to try and give a just decision on the issues raised before me. Although it is natural for there to be powerful emotional response to the humanitarian problems which cry out for solution, my role is to examine, as fairly as I should, the legality of the detention of these 111 Viethamese people. The adequacy, or suitability of detention centres, the strain placed upon the Hong Kong Government in seeking to control the influx of boat people, the social problems caused by large number of Viethamese being admitted into the community, all these matters, important as they are, are not for me to deal with, nor even comment upon.

3. I must not allow my judgment to be blurred by the natural reaction of knowing that these 111 applicants have been virtually imprisoned for some 18 months without having committed any offence, without trial, without any of the normal processes of law which protect persons from detention by the Executive. The ancient remedy of 'Habeas Corpus' allows me, however, to scrutinize and review the decision of a Government Officer, given over the telephone, which it is said is the lawful basis for depriving these people of their liberty for such a very long period of time. I have therefore given the most anxious consideration to the evidence placed before me and the able submissions of counsel.

FACTS:

4. In February 1989, Captain Pham was asked by Ngo Xuan Phuong to navigate a vessel from Vietham to Japan. Pham had bought a ship, a steel hulled cargo vessel, some 70 metric tons, 28 metres long and with other persons wished to escape to Japan.

5. Captain Pham was an experienced sailor. He held a Master's certificate and had sailed to Japan many times. He inspected the vessel, and I do not set out in detail what he stated he found in his second affidavit.

6. The journey started on April 21st with 113 persons on board. After navigating the river from Haiphong to the open sea, they arrived at Hainan Island where food and water were taken on board. The ship had been fully laden with diesel fuel in Vietham.

7. According to Captain Pham, although there is some dispute about this, the ship struck a sandbank and the anchor was pushed through the forward hull plating causing some of the freash water to be lost. A course was set for Hong Kong, but the intention always was to continue to Japan.

8. The events of May 1st are important and I therefore set them out in some detail.

9. CHAN Wing-hin is a Sergeant in the Marine Police. On May 1st at mid-day, he saw this Vietham ship in Stanley Harbour and it was at anchor. The Captain requested assistance. He said the bilge pump did not work and the forward hold was leaking. At 13.10, Sergeant Chan received a radio message that all the 113 people on board were to be taken to Green Island. The people were transferred to the police launch and the ship, subsequently classified as VRD 101/89, was towed alongside. Captain Pham said that he had told the police they wished to continde their journey.

10. At 14.00 hours, the duty office of the Immigration Department was notified and at 14.20, CHUNG Han-hing, a Senior Immigration Officer telephoned CHEUK Koon-cham, then the acting Assistant Director of Immigration.

11. Captain Pham stated in his affidavit that it was at the time of the police interception, that he was told that a notice as to the Government's policy was given to him and he was offered food and water and that any repairs to the boat would be carried out.

12. From the documents produced, a warning notice was given and declarations were signed on May 4th, but it is clear from the Occurrence Book, Exn. CHH-1 that at 17.00 hours on May 1st, there is logged an entry.

"Informed by Y.C. Kwan that 88 out of 113 Viethamese boat people on board VRD 101/89 expressed incentive to carry on their journey to Japan and requested for assistance from the Hong Kong Government. He further stated that he had passed on this message to R.C.C."

13. Although it is always difficult to make findings of fact from affidavits when dispute arises, the probabilities as to the events of May 1st are supported by the documents disclosed and the oral evidence of Mr. Asprey, the Secretary for Security and Mr. Hanson who was, at that time, a Government Refugee Co-ordinator and Chairman of the Contingency Accommodation Committee.

14. In my judgment, it is probable that the warning notice was either given or read to Captain Pham when he made it known, as Sergeant Chan acknowledges, that repairs were required.

15. The interviews did not take place until May 4th and the police and accompanying boat were well on their way to Green Island before the "verbal detention" was issued by K.C. Cheuk.

16. On arrival at Green Island, from Exh. CHH-1, the Immigration Department was obviously aware of the Vietnamese persons' desire to travel to Japan and their request for assistance. (See the log entry 2092) Further from Exh. JDK-1, a memo dated May 5th from the Director of Marine to the Secretary for Security, the boat was inspected on May 1st by the Marine Department at Green Island; the boat was taken to the Government Dockyard that evening, and put on the slips for inspection on May 3rd.

17. The Government, under pressure from the Applicants Solicitors, disclosed on June 22nd this year a confidential memo of May 8th, 1989 exhibited JDK-1. If there was any doubt as to the truth of what Captain Pham says in his affidavit took place at the time of interception, the confidential memo says:-

The Interception

"Marine Police launch intercepted the above vessel at 12.10 on 1.5.89 off Stanley. After they had been told of the current policy adopted by the Hong Kong Government to deal with Vietnamese boat people seeking entry into Hong Kong for overseas resettlement, 88 out of 113 boatmates expressed their desire of carrying on their journey."

and then this important sentence "For the purpose of establishing their real identity, the whole boat load of 113 was conveyed to Green Island Reception Centre at 1500 hours for immigration preliminary examination."

18. The probabilities therefore are, in my judgment, that this particular boatload of persons were told of the Government's policy to give assistance and the boat was taken to Green Island for the purposes of further investigation.

19. On May 4th, interviews took place, the warning notice was read and explained and declarations were signed. These are important documents and the warning notice which is for this boat says as follows: (Ex. "PVN 1")

WARWING NOTICE

"There is a new policy inforce in Hong Kong.

Former residents of Vietnam seeking to enter Hong Kong as economic migrants are now treated as illegal immigrants. You are free to leave Hong Kong.

If you choose to continue your journey, you will be given food and water and if necessary, your boat will be repaired. If you do not leave Hong Kong and are found to be an economic migrant, you will be detained as an illegal immigrant, pending repatriation to Vietnam."

20. The persons concerned all signed the declaration and it is important to recognise that the declaration had an option of what the person wanted. It says this:

DECLARATION

"I, as well as other members on board this vessel, am fully aware of the 'Screening' policy currently enforced in Hong Kong, and I request to leave Hong Kong for a third country."

21. What has been crossed out are the words (I request) "that permission be given to allow us to enter the detention centre".

22. Further, a statement was taken from Captain Pham by an Immigration Officer, which is couched in clear and courteous language, and, said .... "the boat went on the rocks and leaked and on May 1st, the boat came to Hong Kong. Now we, 108 people ask the Hong Kong Government to supply us with food and fuel oil and help us to repair good the boat so that we can continue our trip to Japan. I am a Master of ocean going freighter by profession. I have an experience of 25 years of sea .... I have learnt from radio (voice of the Vietham) that a screening policy was implemented in Hong Kong in the year of 1988. Also travelling in the same boat is a first mate Ngo Xuan Phuong who has been my parther for six years, and he knows that there is a refugee centre in Kobe Japan, and that if our boat come to the port of the Japanese Government will take us in. Thus we, 108 people will leave Hong Kong for Japan. We ask the Hong Kong Government to help to repair good our boat and supply us with the following food and fuel oil". It is also said that at this interview the Captain signed a form "PVN-2", saying that he had no objection to the boat being destroyed. This was a standard form. In my judgment, this really meant nothing, as everyone knew that a request was being made to the Government for the boat to be repaired and the Government were intending, as it is clear from their actions, to repair it. On May 5, the boat owner - Ngo Xuan Phuong sent a letter to the Director of Immigration (Ex. 'PVN 1'), which, in its translation, is moving in its simplicity and dispels any doubts about what was said or done by officials, particularly whether there was consent to destroy the boat.

        "My name is Ngo Xuan Phuong, the boat owner of 113 people, who came to Hong Kong on 1 May 1989.

        When intercepting by police boat, the Immigration took us to Green Island Camp. We explained our desire to continue to go to another country. We only asked the Hong Kong Government to help repairing our boat and supplying foods.

        According to the Government's recent notice, when we entered the camp we could not take with us cloths and belongings but we had to leave them on the boat.

        Now we have completed the procedure for continuing the journey. While waiting, we request that you allow us to receive our belongings, which we left on the boat. If the situation is not allowed, we request that the government look after our belongings on the boat. If it's possible, we request that you give us some cloths and necessities while waiting for our boat to be repaired and to be permitted to leave.

        Hoping for your attention and humane help.

        We thanks and appreciate very much.

 

Sincerely

Boat owner Signed

Ngo Xuan Phuong"

23. I should now set out the two then current Government Immigration policies relevant to this case. As the warning notice stated, a new policy had been introduced in July 1988; no longer would automatic refugee status be accorded to boat people. A screening process would occur to decide whether the individual was entitled to refugee status or not. If screened in, the person would be accommodated in the refugee camp with the opportunity of working in the community and living a normal free life. If screened out, the person would be sent to a detention centre with restriction of liberty and movement.

24. The Government, because of the pressure of accommodation, also wished to assist boat persons to continue their journey to another country. This came to be called the 'Millport' policy or facility. Mr. Asprey explained "On intervention", if boat persons asked for assistance, they would be provided with food and water and their boat repaired. It is obvious that for this to occur the boat and its occupants would have to be taken to some place in Hong Kong.

25. He told me that there were no fixed financial limits and that "each case would be dealt with on its merits".

26. This was the first 'Millport' case for some 18 months and later the policy was altered, as were the warning notice and declaration.

27. To conclude the facts, estimates were obtained for the repairs to the boat on May 4th. I do not know what standard of repair was examined, as the boat was only intending to go on one single trip to Japan, but the repair was said to cost $500,000. Even this amount, it was asserted, was insufficient for the boat to be sea worthy on an ocean crossing.

28. On May 4th, (JDK-2), a memo was sent from the Immigration to the Commissioner of Correctional Services which said:-

"Please receive into your custody the following number of persons, who has been detained under Section 13D by Authorization of K.C. Cheuk. Date of Arrival the 1st May". This was sent and received on the 4th May.

29. On May 22nd, there was a meeting of the Contingency Accommodation Committee. Minute 5.1 (JDK-2) says:-

"Mr. Chow enquired on the progress of 113 VBP requesting for 'Millport' and said they should move out if their request would not be met in the hear future. Mr. So, said the Marine Department had estimated the cost of repair to be around $700,000, and that it was sinking. The Chairman, said that HKG was not prepared to spend this money. This being the case, it would be unlikely that this group could be 'Millported'."

30. I do not know where Mr. So obtained this information that the boat was sinking, and the estimate was $700,000 other than from the documents already disclosed.

31. On May 29th, the Committee met again; Minute 5.2 says:-

"Mr. Michael HO sought confirmation on the decision as regard the 'Millport' case. Mr. Hanson replied that HKG was not prepared to spend more than $500.000 in repairing the boat. Under the circumstances 'Millport' would not be allowed and the VBP had been moved into the detention centre. DIF, should now be issued to this group."

32. Mr. Hanson, when giving evidence, said this minute was shorthand, and it did not mean the Government would spend $500,000. He also said that there was considerable pressure at that time because of the large influx of boat people. The sentence DIF, etc. is important because these are the forms which identify the individual (see examples set out in 'JDK-2). After this meeting, there was a dramatic change. The forms were sent out in June asserting that the detention was under Section 13(D) and that the detention was authorized on May 1st. At some time, the boat was destroyed. How and why this occurred, no one has told me. It was only after a certain amount of judicial prompting that the Government condescended to give the court imformation about the Millport policy and other relevant matters. Mr. Asprey says it was someone from the Marine Department who ordered the boat to be destroyed. No one from the Marine Department has come forward and given any evidence at all. The loss of the boat, as I will explain later, is an important factor. I appreciate there is a separate civil action brought against the Government by these persons. In this important case where the Government admits destroying the boat, I would have thought that evidence would be called on this matter. The only other fact I need record is that in May 1989, Japan had an 'open door policy for refugees, and that these Viethamese, if they had arrived in Japan, would have been accepted as refugees. This policy changed in September 1989.

Statutory Provisions

33. These are found in the Immigration Ordinance (Cap. 115)

    S4(1)    "... an immigration officer may

34. Part IIIA of the Ordinance deals with Viethamese refugees.

35. S. 13A(1) "An immigration officer may permit any person

"

The Court's Approach

36. The most recent decision of high authority on immigration matters is R. v. Home Secretary Exp Khawaja (1984) 1AC 74.

37. S13D deprives a person of his liberty; this section must be construed strictly. Lord Scarman spoke at p. 111, of the "jealous care our law traditionally devotes to the protection of the liberty of those who are subject to its jurisdiction". Further, this section is penal in nature - (see the judgment of McMullin J.A. in A.G. v. Cheung Kam-ping - 1980 HKLR 602).

38. Although the matter before me is 'Habeas Corpus', there is no substantive distinction between that ancient remedy and the modern approach of judicial review (see Ex p Khawaja 'supra'). One issues as of right the other is a discretionary remedy, but the principles of law are the same.

39. The other important legal considerations I must bear in mind are first, that, in law, Vietnamese have the same protection under the law as Hong Kong citizens - as Lord Scarman said in Exp. Knawaja "He who is subject to English law is entitled to its protection..."; and secondly, the classic dissent of Lord Atkin in Liversedge v. Anderson (1942) Ac 200, now accepted as correct on, inter alia the declaration of the important legal principle "that in English law every imprisonment is prima facie unlawful and it is for the person directing imprisonment to justify it."

40. The Applicant has put forward evidence to show a prima facie case, and it is for the Government, therefore, to show that the detention is lawful. I do not, however, decide this case on some burden of proof point.

41. The object of Section 13 appears to me, to give a discretion to an Immigration Officer to decide whether it is right that a person should be detained pending an examination into his claim for refugee status. As the decision effectively deprives a person of his liberty, it therefore must be one which is lawfully taken for the purposes of this Section. Mr. McCoy, to whom the court is grateful for his clear and cogent submissions, attacks the 'verbal authorization' of May 1st on a number of grounds. He submits that these persons did not "arrive" in Hong Kong; they were passing through and seeking shelter. These submissions together with the authorities he cites have considerable force and may be right. It appears to me, however, that the so-called verbal authorization which is the decision to detain under Section 13 relied upon by the Government in answer to the writ, is fundamentally flawed.

42. First, 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 1AC 374). I do not consider that Mr. Cheuk exercised any discretion at all. He told me that he goes through, as he put it, "my own mental process". I find that very hard to accept, as when questioned by Mr. McCoy, he admitted that he knew nothing about the persons on board, nor the boat, nor what was told to them, nor that they wished to go to Japan. All he knew was that it was a Viethamese boat with 113 persons. He also admitted that he always made the order 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.

43. Further, he failed to take into account a material factor that the persons were being invited into Hong Kong for the purposes of establishing their identity and having their boat repaired. I am in no doubt that this decision was unlawful. To deprive all these persons of their liberty for 18 months as a result of this telephone call is an affront to the rule of law. Any High Court Judge true to his judicial oath, presented with these facts, should not shrink from condemning what has occurred here. This is the worst type of arbitrary detention by the Executive which, in a democratic society one could find.

44. I would if necessary also have struck down this decision for other reasons. The legislative purpose of the section is aimed at refugees who arrive in Hong Kong to seek asylum here and who may or may not ultimately be granted refugee status. These persons did not arrive in Hong Kong for that purpose.

45. Secondly, as I have to determine the legality of detention, as at to-day's date, it is clear from the use of the words "pending a decision" to grant or refuse, that the object of Section 13(D) is to enable steps to be taken by the Director of Immigration to determine whether the person is or is not a refugee, so that he can be resettleed elsewhere (see also Section 13(A)). The Section does not permit detention for any other purpose, nor does it permit detention for an unlimited period of time. It is for the Government to justify such detention. Until Mr. Asprey came to give evidence, the Government were apparently intending to ignore this important factor. Godfrey J. recently in Re Romeo Santiago (Jan 17th 1989), when dealing with the question of a person's detention for 4 months "pending his removal", said, "the longer a person is kept in detention pending his removal from Hong Kong, the heavier the burden is upon the Immigration Authorities to justify their conduct when it is challenged."

46. Also in LIEW Kar-seng (1989) 1HKLR 60, Godfrey J. dealt with similar words and followed the general approach of Woolf J. (as he then was) in R. v. Governor of Durham Prison Ex p Hardial Singh 1984 1WLR 704 who said that implicit in a power of removal was that it should occur within a reasonable period of time.

47. Mr. Asprey said that there are now 43,000 Vietnamese boat people in detention centres, and 8,500 in refugee camps awaiting resettlement; and that the average waiting time for the screening process is approximately two years.

48. This seems to me to be an inordinately long period of time for people to be detained. It is, however, not my task to determine the legality of detention generally only that these persons have been detained for some 18 months. The power to detain must be for a reasonable period of time; what that should be depends on the particular facts, on which as I have said earlier, I was being kept in the dark. Mr. Asprey says he has limited manpower and specialized training is required; further there may be financial limitations on this part of the Government's programme. As I have said before, Hong Kong may well have a heavy burden thrust upon it by virtue of its international obligation to accept refugees, but, in my judgment, if detention is under Section 13(D), then a period of 18 months is unreasonable. The evidence of Mr. Asprey does not justify the conduct of the Government in depriving these persons of their liberty for such a long period of time.

49. On this aspect, I would respectfully adopt the approach and reasoning of Godfrey J. in the above cited cases.

50. Thirdly, on May 4th, there was a clear and unequivocal promise by the Government that they would repair the boat, and the persons were "free to leave Hong Kong"; instead the boat was destroyed and the persons found themselves in a detention centre. Any right minded democratic society should be appalled at these events.

51. Fortunately the law, as expressed in the Privy Council, recognises that Governments cannot behave in this manner. In Attorney General of Hong Kong v. Ng Yuen Shiu (1983) 2AC 629 at p. 638, the Privy Council said: -

52. In the later, C.C.S.U., (supra) case, Lord Wilberforce at p. 408 said, of the scope of judicial review, the decision must have consequences which, inter alia, deprive a person "of some benefit or advantage .... which he can legitimately expect to be permitted to continue....", or "he has received assurance from the decision maker will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn." This was a "legitimate expectation" which has consequences to which effect will be given in public law.

53. Has the Government then acted fairly towards these persons? They were apparently told by some official that their boat and possessions were destroyed but they were given no opportunity to make representations as to the Government's change of heart, nor as to what should happen to them. It has been submitted that the boat could not be economically repaired. The report from Mr. Adal, JDK-1, however, says as follows:

54. This would appear to me to suggest that bureaucratic delay would occur by virtue of CTB approval. The Government, in my judgment must have thought that this was all too much bother, and it was far cheaper and easier just to lock these people up, rather than help them. As a matter of law, these persons had a reasonable expectation of being consulted before their future was sealed (see also R v. Secretary of State for the Home Department exp. Asif Khan (1984) 1 WLR 133 particularly at p. 134). It may be that other ways of getting them to Japan could have been explored. They might have enlisted the help from some voluntary organization, or some official refugee body. The boat might have been sold. No Government offer of alternative travel was considered, or indeed offered. These people had every legal right to expect that because of what the Government promised, they would be assisted. On this aspect of the case, I am in no doubt that the standard of the Government's conduct felt woefully short of what should be expected in a civilized community. I appreciate that in May, there was a heavy influx of boat persons. These 111 were in a special category. They have been treated as though they were an unwelcome nuisance rather than as human beings. Miss Hartstein submits that they can sue the Government for breach of contract. I mean no personal disrespect, but I find this submission extraordinary. Do you compensate 111 persons who have been denied their wish to go to Japan, lose their boat and possessions and been deprived their liberty for 18 months by giving them a sum of money and then deporting them? It has not escaped my attention that in all the documents I have seen, in all the evidence produced and given by senior Government officials, not one word of apology has ever been offered to these persons. Mr. McCoy has castigated the Government in firm and uncompromising language for its treatment of these people.

55. I must restrict myself to moderate language. Being as fair as I can to the Government, especially by reason of the pressure which was on them in May 1989, in my judgment, they should be ashamed at the way they have treated these 111 persons.

56. Illegal immigrants from China who enter by fraud and deceit have all the safeguards of our judicial system and if punished serve in the order of 10 months imprisonment. Those who were invited to come here for help were locked up for 18 months and deprived of the normal safeguards which citizens are entitled to. I have come to the firm conclusion that the detention of these Vietnamese for the variety of reasons, I have sought to explain above, was and has continued to be unlawful.

57. I turn then to the effect of an order of Habeas Corpus and the disturbing evidence of Mr. Asprey. He said: -

"If these Applicants succeed, permission to stay would be refused and they would be removed to Vietham. If they lose, they will be asked to go through the screening process (which will determine whether they are refugees or not). If they refuse, we will invite them once again and try and persuade them. If not, they would then be detained pending repatriation to Vietham."

58. This might appear to be a direct challenge by the Executive to the Judiciary that a judge's order will effectively be put at naught. I am sure that many of my brethren would put it more eloquently but the Judiciary is not only independent of the Government, it is strong enough to resist any attempt that the rule of law should be weakened, because a judge's order causes embarrassment, or inconvenience, or extra financial burden on the Government. I find it disconcerting to be told by a high official that if I grant this order, these 111 persons, who have been so shamefully treated, will be deported to Vietham from whence they fled with every expectation, with the help of the Hong Kong Government, of getting to Japan. Perhaps on more mature reflection, Mr. Asprey and the other high Government officials might like to reconsider this statement. The Government by their own actions have brought this problem on themselves. They have, by their unlawful acts broken Article 9(i) of the International Covenant on Civil and Political Rights which reads:-

"Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law."

59. In my judgment, for the reasons I have sought to explain, the Hong Kong Government has broken this important International Convention. They should now find a solution which accords with justice and with the recogntition of their own shortcomings.

60. Further, I would like to point out one other matter, Section 5 of the Habeas Corpus Act of 1679 is still in force in Hong Kong.

61. A forfeiture for contravention in 1679 because of the importance of this matter, was set at 500 pounds. (No doubt, that would be worth many millions of pounds today). This section has been explained in The Attorney General for the Colony of Hong Kong v. Kwok Hau Sing (1873) 5 LRPC 179. There, a Chinese described in the case as a "coolie", who had killed the captain of a boat had been set free on a Habeas Corpus when on a charge of murder. He was subsequently re-arrested, detained and charged with piracy. The Privy Council, at p. 202, when dealing with this Section said "They do not say, however that the Section may not also apply to cases where a prisoner is discharged unconditionally upon the ground that the warrant, on which he is detained, shows no valid cause for his detention. They think, however, it can only apply when the second arrest is substantially for the same cause as the first, so that the return to the second writ of Habeas Corpus raises for the opinion of the court the same question with reference to the validity of the grounds of detention as the first". They held that murder and piracy were separate offences and therefore this Section did not apply.

62. It is not for me to decide whether any subsequent detention of these persons on a matter under the Immigration Ordinance is "substantially for the same cause"; or whether the section applies, but my initial reaction is that it does; no doubt this matter will be fully considered by all the lawyers concerned (see also Exp. Budd (1942) 2 KB 14).

63. I would only conclude by saying that this aspect of the case has troubled me greatly. I trust that the high officials of the Hong Kong Government would not wish to give the general public the impression that an order of a High Court Judge can be brushed aside lightly, because if they do, they tarnish and weaken the rule of law. At this time, in Hong Kong's history, it is of vital importance that the rule of law not only prevails, but is seen to be supported by the Government.

64. I grant a writ of Habeas Corpus for each of these 111 Applicants. They must be set free.