In re Tran Dat and Others

1994 MP 3562

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. I have read the writs of habeas corpus which the 7 new Applicants wish to issue, and the evidence which it is proposed to file in support of them. I propose to make an order for the writs to issue. For the benefit of those present who are not lawyers, I should add that does not mean that I think that the 7 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.

2. As for when that hearing should take place, I do not believe that that hearing can take place this week. Although the Respondents were informed last Wednesday of the names and numbers of the detainees in respect of whom the applications for habeas corpus would be made, applications for the writs of habeas corpus to issue were not made until this morning. Although general principles may be applicable to detainees in similar categories, each application has to be considered on its own merits - and that means that the Respondents have to make their own enquiries in relation to each of the Applicants, they have to reduce the result of those enquiries into an affirmation or affidavit so that the facts can be properly before the court, and they have to prepare their arguments for saying why, on those facts, the continued detention of the Applicants is not unlawful. Since it is inevitable that the court's ultimate findings in the case of the 7 new Applicants will be used as a yardstick to determine the lawfulness of the detention of other detainees in the same position as the 7 Applicants, it would, I think, be wrong to require the Respondents to come to court sooner than is absolutely necessary. Any period of unlawful detention is, of course, a wrongful denial of liberty, but 3 of the 7 Applicants have been detained since 1989, 3 of them have been detained since 1990, and 1 has been detained since July 1993. If the applications are heard on their merits early in January, the proportionate length of their detention will not have been significantly increased. I, therefore, direct that the applications be heard on a date to be fixed early in January, and that in the interest of continuity I should, if possible, be the judge who hears the applications on their merits.