R. v. PHAM VAN BA AND OTHERS

Photocopying of this Headnote is not allowed

Case No.201 of 1992

Headnote

Witness summons issued under s.34 of CPO Cap.221 - witness under a Deportation Order of the Director of Immigration under voluntary repatriation of Vietnamese - person under custody at time of issuing the said summons but not so when he is required to give evidence - s.81 "Body Order" under Immigration Ordinance also considered.

IN THE HIGH COURT OF JUSTICE

CRIMINAL JURISDICTION

Case No. 201 of 1992

[Transcript of the tape recording of the Ruling on leave to issue warrant of arrest in the case of Regina v. Pham Van Ba & others, before Deputy Judge Yam]

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Judgment

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COURT: There are two applications before me originally, and the third application was made earlier today but the witness was not brought before the court. That application by the 1st defendant in MP3208 will have to be adjourned to a date to be fixed.

2. The two applicants, being the 6th and the 12th defendants, applied in respect of two witnesses, now two respondents, who they say can give alibi evidence for the defence. Application was made under Section 37 of the Criminal Procedure Ordinance. Previously, the Attorney General applied under Section 32 (4) (b) of the Immigration Ordinance to detain the two respondents. These two respondents have elected for voluntary repatriation and are now detained under a removal order of the Director of Immigration. This will be effected before they can give evidence for the defence according to the present assessment, which will be months away in the future.

3. The question before me is this: is there any legal way to stop them from going back to Vietnam before they can give evidence?

4. At the outset, Counsel for the two respondents, Mr DYKES, submitted that the application is procedurally irregular as it was made by way of motion and not by way of originating summons. He cited Order 79 Rule 11 of the English Rules of Supreme Court, I wish to point out that this rule has no Hong Kong equivalent. Our Order 79 only has rule 1 in respect of transfer of tribunal proceedings to the High Court. In my view, it does not matter, whether or not, the present application is made by originating summons, or by originating notice of motion, or by notice of motion. In any event, no injustice would be caused to the respondents.

5. As I have said, the present application is made under Section 37 of the Criminal Procedure Ordinance. Sub-section (1) provided that:

"If the court is satisfied by evidence on oath that a witness, in respect of whom, a witness order or witness summons is in force, is unlikely to comply with the order or summons, the court may issue a warrant to arrest the witness, and bring him before it:

Provided that a warrant shall not be issued under this sub-section, in the case of a witness subject to a conditional witness order, unless notice has been given requiring him to attend the trial, nor in the case of a witness subject to witness summons, unless the judge is satisfied by such evidence, as aforesaid, that the witness is likely to be able to give material evidence, or produce any document or thing likely to be material evidence in the proceedings."

6. Three ingredients are required in this kind of application:

(1) The witness summons is in force;

(2) The witness is unlikely to comply with the summons;

(3) The witness is likely to give material evidence.

7. I do not think I will have any problem with (1) and, that is, the witness summons is currently in force. In respect of the third requirement - since both of them have given their statements to the effect of being alibi witnesses, their evidence must be material to the proceedings.

8. Both respondents have elected for voluntary repatriation and are currently under a deportation order of the Director of Immigration. One respondent Pham Si Dung said, "I do not want to give such evidence, (i.e. alibi evidence for the 12th defendant), as I have been tricked and I want to return to Vietnam now." The other respondent Vuong Can Phu said he wanted to leave Hong Kong so that he might see his parents in Vietnam. Accordingly, I find both of them are unlikely to comply with the witness summons.

9. Counsel for the respondents submitted that the application is misconceived since the provisions of Section 37 contemplate the arrest of a person who is not otherwise subject to detention. The section, obviously, does not say so. There is, as pointed out by Counsel for the respondents, another provision in Section 81(1) of the Evidence Ordinance for ordering a person in custody to be brought before the court. However, the detention order of the Director of Immigration was made for the purpose of deportation. In the ordinary course of events, the deportation will be made before these two respondents can give evidence.

10. Mr BRADLEY, who has kindly appeared for the Crown today before me, told me that in the ordinary course of things, that would take about four to six weeks. Mr DYKES said they are likely to be removed soon because the Immigration Authority cannot use immigration legislation for ulterior purpose, for example, for a longer detention period to enable them to give evidence for the defence. In other words, if an order is made under Section 81 of the Evidence Ordinance, by the time these two respondents can give evidence, these two respondents will not be persons in lawful custody, they will be back in Vietnam already under the deportation removal order.

11. The clear wordings in Section 37 of the Criminal Procedure Ordinance does not suggest the section is only restricted to persons not in custody. If a person is in custody, both at the time of issuing the summons and at the time of giving evidence, there is no need to issue a warrant of arrest. The purpose of an applicant can be served by a warrant, or commonly known as " a body order", to be issued under Section 81 of the Evidence Ordinance. However, here, by the time the two respondents can give evidence, they will no longer be persons in custody. Further, they will be persons outside this jurisdiction and there will not be any means to secure their attendance. In my view, Section 37 can augment this lacuna. The witness summons is properly issued under Section 34. They will no longer be persons under custody by the time they are required to give evidence. There is every indication that they are unlikely to comply with this summons and a warrant of arrest must be issued to secure their attendance.

Another consideration for this court is what to do with them after a warrant is issued, should they be remanded by the court in custody or on bail. I have just been shown the judgment of Mr Justice KAPLAN in an earlier case, given on 5 August 1993. He said this:

"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 how 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 the Police Officer under Section 36 of the Immigration Ordinance. However, I would have thought that it is not beyond the wit of man to device 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 recognizance, and possibly, very stringent reporting restrictions. Without giving any consideration to 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 it 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 Mr Justice GALL 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."

As for me, of course, I have the jurisdiction to grant the two respondents bail, under sub-section (3) of Section 37. I just want to echo the sentiment expressed by Mr Justice KAPLAN. I would be minded to grant these two respondents bail since it will be highly undesirable to detain these two respondents, just for the purpose of giving evidence for the defence. However, I do not know whether my order would be complemented by the limited visa sought by Counsel for the two defendants and whether it is fit and proper to do so. For the matter of bail, I would adjourn it to a date to be fixed, and giving time for the Director of Immigration to consider his position.

Accordingly, the order I am making is: warrant of arrest is issued against each of the two respondents, pursuant to Section 37 of the Criminal Procedure Ordinance, question of bail or custody adjourned to a date to be fixed. I think estimated time will be 2.30 p.m. for two hours. I have already ordered that the third application be adjourned to a date to be fixed to be heard together in the next adjourned hearing.