ATTORNEY GENERAL v. BUI THI NGOAN AND OTHERS

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS NO. 3311-16,

3366, 3371, 3374-76, 3378, 3380, 3382,

3385-86 AND 3389-91 OF 1993

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J U D G M E N T

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THE CRIMINAL TRIAL

1. During the night of 3rd and 4th February 1992, a fire broke out at the Shek Kong Detention Centre for Vietnamese migrants. A number of men, women and children perished. Subsequently, a prosecution arising out of the incident was commenced, and 13 people were indicted on charges of murder and riot. Not surprisingly, the trial has become a notorious one. The tragic events which gave rise to the prosecution made that inevitable. More significantly, it is now the longest murder case to have been tried in Hong Kong, even though the Crown's case is still many months away from being completed. It is common knowledge that that has resulted in a considerable burden on the Legal Aid Fund, and a drain on the resources of both the Judiciary and the Attorney General's Chambers.

2. The trial began on 17th December 1992 before Gall J. and a jury. For a trial of its magnitude, it got under way commendably quickly. At an earlier hearing, I was told that that was in part to accommodate the desire of the many Vietnamese witnesses to return to Vietnam as soon as possible. However, the trial has regrettably lasted far longer than was ever anticipated. I do not propose to repeat the estimates which I have been given at earlier hearings. It is sufficient for me to say that the current estimate, which I was given from the bar table by Mr. Power, a member of the prosecuting team, is that the Crown's case will not be concluded before the end of April 1994. That estimate was based on a number of assumptions. From my limited knowledge of the trial, I regard those assumptions as realistic. However, the estimate made no allowance for those unforeseen contingencies which could delay the trial. The absence through illness, for example, on any day of any one of about 40 people involved in the trial, whether defendant, counsel, witness, juror or judge, means that the trial cannot proceed on that day. In my view, an additional two weeks should be added to the estimate to cater for the unexpected.

THE RESPONDENTS

3. The 19 Respondents are all Vietnamese migrants. They arrived in Hong Kong on various dates between 24th May 1991 and 30th September 1991. They all applied on various dates at the end of 1991 or the beginning of 1992 for voluntary repatriation to Vietnam. However, they were all detainees in Shek Kong on the night of the fire, and they are all believed to be capable of giving material evidence at the trial on behalf of the Crown. They have all been named on the back of the indictment.

4. Since the fire, the Respondents have continued to be detained in various detention centres for Vietnamese migrants. I am unclear what the basis of their original detention was, but the basis of their detention in recent months has not been in doubt. The applications now before me are applications by the Attorney General for further orders for their detention. However, in order to appreciate the basis of their current detention, and the context in which I am being asked to make further orders for their detention, an understanding of the statutory framework is necessary. All references in what follows to sections of an Ordinance are references to sections of the Immigration Ordinance (Cap.115), and all references to "the Director" are references to the Director of Immigration.

THE STATUTORY FRAMEWORK

5. The sequence of events which the statutory framework envisages will happen to an asylum seeker from Vietnam who arrives in Hong Kong without valid travel documents is as follows :-

(i) The Director may authorise his detention pending a decision to grant or refuse him permission to remain in Hong Kong: section 13D(1).

(ii) If the Director has authorized his detention under section 13D(1), the Director may order his removal from Hong Kong: section 13E(1).

(iii) If the Director has ordered his removal from Hong Kong under section 13E(1), the Director may authorise his detention pending his removal : section 32(1).

(iv) Once the Director has ordered his removal from Hong Kong, he will be repatriated to Vietnam, subject to any review of his claim for asylum by the Refugee Status Review Board, as soon as it is reasonably practicable to effect his removal.

(v) However, there is one situation relevant to this case in which the Director's order for his removal from Hong Kong under section 13E(1) can be postponed beyond the time when the migrant would otherwise have been repatriated to Vietnam. That situation is where he is to be detained "for the purpose of giving evidence at the trial of any offence": section 32(4). In that situation, the court is given the power to make successive orders for his detention for not more than 21 days at a time:

section 32(4)(b). Those are the orders which the Attorney General is asking me to make in respect of these 19 Respondents.

6. I have three comments to make on the court's power under section 32(4)(b) :-

(i) Valid orders by the Director under section 13E(1) are a necessary pre- condition of the exercise of the court's power under section 32(4)(b). That is what Kaplan J. decided in Attorney General v. Pham Si Dung (No. 1)(MP 2626/93). In this case, section 13E(1) orders dated 27th August 1993 were made in relation to the first six Respondents, and section 13E(1) orders dated 4th September 1993 were made in relation to the other Respondents.

(ii) The court can only make orders under section 32(4)(b) if, prior to those orders, the Secretary for Security has validly authorised the detention of the Respondents under section 32(4)(a). In this case, section 32(4)(a) authorisations were made in respect of the first six Respondents on 27th August 1993, and in respect of the other Respondents on 10th September 1993.

(iii) The court's powers under section 32(4)(b) do not apply to defence witnesses. That is what Deputy Judge Yeung decided in Attorney General v. Pham Si Dung (No. 2)(MP 3111/93). This case, though, concerns witnesses proposed to be called by the Crown.

THE ARGUMENTS RELATING TO THE SECTION 13E(1) ORDERS

7. What counsel for the Respondents wish to argue is that the section 13E(1) orders made by the Director were invalid, and that the court has therefore no jurisdiction to make orders under section 32(4)(b), because the power to make those orders has not been triggered. In a nutshell, the argument is that the Director did not make the section 13E(1) orders in order to secure the removal of the Respondents from Hong Kong as soon as it was reasonably practicable to effect their removal. What is suggested is that the true reason why the Director made the orders was to trigger the powers given by section 32(4) to the Secretary for Security and the court to secure their continued detention in Hong Kong for as long as they are needed to give evidence at the trial. That is said to be borne out by (a) the language of the section 13E(1) orders which refer to the fact that the Respondents "removal will be effected after the conclusion of their testimony", and (b) the timing of the section 13E(1) orders which were only made after Kaplan J. had ruled that section 13E(1) orders were a necessary pre-condition of the exercise of the powers conferred by section 32(4). Accordingly, it is said, relying on R. v. Inner London Education Authority ex p. Westminster City Council [1986] 1 WLR 28, that since the Director exercised his power to make the section 13E(1) orders for an unauthorised purpose, those orders are invalid.

8. The language of the section 13E(1) orders is relevant not only to the jurisdictional question. It is also argued that by adding the rider that the Respondents' "removal will be effected after the conclusion of their testimony", the Director has indicated his intention not to remove them until then. Accordingly, it is argued that the court does not have to make further orders for their detention under section 32(4)(b) in order to ensure that they are available in Hong Kong to give evidence: since the Director does not intend to effect their removal during that time, they may be detained by the Director under section 32(1) for the time being.

THE HISTORY OF THE PROCEEDINGS

9. On the face of it, those arguments are powerful ones. But I cannot decide them now. To explain why, I have to rehearse the history of these proceedings. On 7th and 28th October, I made detention orders in respect of the Respondents under section 32(4)(b). The Respondents were not represented on either of those occasions. On 17th November, the Attorney General applied to me for further detention orders in respect of the Respondents. On that occasion, one of the Respondents was represented by counsel, Mr. James Thomson, appearing on a pro bono basis. The argument which he wished to develop was that there was a legal practical alternative to detention, which would still keep the Respondents in Hong Kong and make them available to give evidence at the trial. However, Mr. Thomson was not in a position to develop that argument then. He recognized that, in view of my earlier judgments, his inability to develop that argument then meant that I had no alternative but to make further detention orders for the time being. However, I limited those detention orders to the period up to 26th November, so that the argument could be developed at a hearing which I fixed for 24th November because of its urgency.

10. It so happened that I was available on both 24th and 25th November, because the trial which I was presiding over had had to be adjourned until 26th November. I therefore had two days free (but no more than two days) which would have been ample to consider the argument which Mr. Thomson had wanted to develop. However, by 24th November, the representation of the Respondents had expanded to five counsel (all appearing, be it noted, on a pro bono basis), I was supplied with a formidable list of authorities, there were a total of 17 new affidavits or affirmations to consider, and the Respondents' counsel wished to develop the new arguments relating to the validity and language of the section 13E(1) orders and to my alleged lack of jurisdiction to make the orders sought. There was plainly insufficient time for all the arguments which the Respondents' counsel wished to develop. Moreover, Mr. Casewell for the Attorney General had not been given advance notice of the new points which were to be taken, and he was only ready to deal with the argument which had been outlined on 17th November. Accordingly, I ruled, with the concurrence of some counsel, that I would not hear argument on the jurisdictional issue or the issue relating to the Director's intentions, and that for the time being only I would assume, for the purpose of the exercise of my discretion, that (a) the section 13E(1) orders had been validly made, and (b) in the absence of orders under section 32(4)(b), the Respondents could be repatriated to Vietnam before they gave their evidence. If I decided that, in the exercise of my discretion, I should make further detention orders, I would make them, and leave the other arguments to be argued on a subsequent application by the Attorney General for further detention orders.

11. With the advantage of hindsight, I have no doubt whatever that that was the correct approach. Since the jurisdictional argument, and the argument based on the language of the section 13E(1) orders, depend on questions of fact, namely the reason for the making of the section 13E(1) orders and when the Director intends to effect the Respondents' removal from Hong Kong, the Director must have the opportunity of laying before me such evidence as he wishes on those issues.

12. In the event, despite dispensing with morning breaks and shortening our breaks for lunch, the hearing did not finish until 5:20 p.m. on 25th November. For the reasons which I shall come to later, I had by then decided not to make further detention orders in respect of three of the Respondents. I announced that decision at the end of the hearing. I reserved my judgment in respect of the other Respondents. However, since the current detention orders were due to expire the following day, I told counsel that I proposed to grant further detention orders in respect of the other Respondents expiring on 3rd December, by which time I expected to have been able to give judgment. In other words, by granting further detention orders for 7 days only, I was intending to preserve the status quo pending the delivery of my judgment. With a pragmatism which did them credit, all counsel agreed with that approach.

THE NEEDS OF THE TRIAL

13. In my judgment of 7th October, I said :-

"There is a powerful and compelling public interest in ensuring the proper administration of justice by avoiding the possibility of a long criminal trial being aborted after an enormous amount of time and expense has been incurred. That public interest also requires the Court, if it can, to take such lawful steps as are within its power to ensure that at an important criminal trial in which Defendants face charges of the utmost gravity all relevant and admissible evidence is available for consideration by the jury."

None of the Respondents' counsel argued with that proposition. What they queried was whether the Respondents' evidence was sufficiently important to justify the postponement of their return to Vietnam, and whether the prosecution had paid sufficient attention to the Respondents' desire to return to Vietnam when drawing up the order of witnesses. Mr. Casewell for his part acknowledged the relevance of those considerations.

14. It was agreed that the best way for me to be provided with the relevant information relating to those considerations was for me to hear directly from a member of the prosecution team. It was not thought necessary for him to go into the witness box and to be cross-examined on his evidence. Everyone regarded it as sufficient if he addressed me from the bar table. However, if the information was to be worth anything at all, it had to be frank, and it had to descend to particulars. That could not be done in open court. The press would be entitled to report what was said and the jury might read it. Nor could it be done in the presence of the Respondents. If they heard what I was to be told, it might affect their evidence. Accordingly, with the agreement of counsel, I took the wholly exceptional cause of (a) going into camera when this information was to be given to me, (b) ordering the Respondents and their families to leave court while it was being given to me, and (c) extracting undertakings from counsel and solicitors for the Respondents that they would not disclose to the Respondents and their families what I was told in camera. Courts are always loath to go into camera. Justice unseen is justice denied. But the exceptional circumstances of this case justify exceptional measures, and I could not think of any alternative method of being given the information in the presence of the Respondents' counsel but in the absence of the Respondents and the public.

15. For obvious reasons, I shall not identify in this judgment what I was told by Mr. Power in camera. What I can say is that although some of the Respondents have already given evidence, the course which the trial has taken means that they are likely to be required to give evidence again. What I can also say is that, save for those Respondents who fell into two distinct categories, I am entirely satisfied that their evidence is sufficiently important to justify the postponement of their return to Vietnam, and that the order in which prosecution witnesses have been and will be called was both rationally based and took into account as far as possible the witnesses' express wish to be repatriated to Vietnam as soon as reasonably practicable.

16. I turn to the two distinct categories which I regard as exceptional:

(i) Two of the Respondents (the Respondents in MP 3375/93 and MP 3376/93) are to be called at the trial to give evidence relating only to their identification of the bodies of two of the victims in the fire. Attempts have been made to agree that evidence, but they have as yet proved unfruitful. However, it was conceded that the Crown's case against the Defendants would not be harmed by the absence of those witnesses. The worst that can happen is that the indictment will have to be amended to allege the murder of persons unknown.

(ii) The Crown was, at an earlier stage in the trial, willing to permit one of the Respondents (the Respondent in MP 3314/93) to return to Vietnam unless the defence required her to be tendered for cross-examination. The defence did not require her to be tendered, and the Crown decided to permit her to return to Vietnam. She is the only one of the Respondents with both a spouse and child in Vietnam. Through what may have been an oversight, that decision was either not conveyed by the Crown to those responsible for arranging her repatriation or not acted upon. Mr. Power's position was that since she was still in Hong Kong, and since she was able to give relevant evidence, the

Crown now wished to call her, though he accepted that this constituted a change of position on the part of the Crown.

17. When I told Mr. Casewell that my provisional view was that further detention orders should not be made in respect of these three Respondents, Mr. Casewell did not feel able to argue otherwise.

18. There is one other category of Respondent which it is necessary for me to address specifically. Three of the Respondents (the Respondents in MP 3311/93, MP 3371/93 and MP 3380/93) have been held by Gall J. to be in contempt for refusing to answer, or to continue to answer, questions once they had been called as witnesses. Their counsel argued that since they have refused to answer questions or to continue to answer questions, they will no longer be giving evidence at the trial. Accordingly, orders for their detention under section 32(4) cannot be made, because they may only be detained under section 32(4) "for the purpose of giving evidence". I reject that argument. The fact that the three Respondents have refused to answer questions or to continue to answer questions does not mean that they will no longer be giving evidence at the trial. All contemnors are free to purge their contempt. Indeed, they are encouraged to. There may come a time when these three Respondents decide to answer questions or to continue to answer questions. If that is what they decide, all they have to do is to let the Crown know that. Since the Crown still wants them to give evidence, and since they will give evidence if they agree to answer questions, their detention, in my view, comes within the rubric of section 32(4).

19. Counsel for the three Respondents take another point. They maintain that Gall J. has already made orders for the Respondents' detention until the end of the trial when they will be brought before him to be dealt with for their contempt. Accordingly, Gall J.'s order for their detention until the conclusion of the trial means that further orders for their detention under section 32(4)(b) are superfluous, and for that reason should not be made. I reject that argument as well. With the agreement of all counsel, I spoke to Gall J. to find out precisely what he ordered. He told me that he had made no order for the detention of any witness found to have been in contempt. He merely ordered that they be brought before him at the end of the Crown's case to be dealt with for their contempt. In other words, he made a "body order" to be put into effect when the Crown's case was over.

20. I relayed this information to counsel. It resulted in the further submission that Gall J.'s "body order" amounted to an order for their detention. I reject that submission as well. A "body order" does not amount to an order for the detention of the person to whom it is addressed. On the contrary, a "body order" assumes that the person is being detained lawfully. Once the person ceases to be in lawful custody, the "body order" lapses. I have no doubt that that is the true effect of section 81(1) of the Evidence Ordinance (Cap.8), under which I imagine Gall J. was purporting to act. It provides:

"Any judge of the High Court may ... issue a[n] ... order for bringing up any person in lawful custody before any court ... to enable such person to ... defend ... any proceedings ... before such court." (My emphasis).

In purporting to exercise his powers under section 81(1), Gall J. must have assumed that the contemnors were in lawful custody, having been detained pursuant to section 32(1), section 32(4)(a) or section 32(4)(b) depending upon when the "body orders" were made.

THE INTERESTS OF THE RESPONDENTS : THE RESPONDENTS' PRIMARY CASE

21. The needs of the trial have to be balanced against the interests of the Respondents. Their primary wish is to be allowed to return to Vietnam as soon as possible. They have not been found guilty of any conduct. justifying the postponement of their return to Vietnam. They have now been separated from members of their families in Vietnam for a considerable time. Leaving aside the Respondent in MP 3314/93, three of the Respondents have spouses in Vietnam, and the child of one of them (the Respondent in MP 3378/93) died in a tragic accident long after the Respondent had left Vietnam. It is true that the Respondents all chose to leave Vietnam in the first place, but I must not overlook the fundamental human right in a civilized society of any person not to be held in a foreign country against his will when he has not been found guilty of any conduct justifying his detention.

22. It was against that background that Mr. Thomson submitted that the Respondents had been kept in Hong Kong against their will for so long that it would now be unlawful to order their further detention under section 32(4)(b). That was an argument which I considered in my judgment of 7th October. I did so because, as the Respondents were not represented, I had taken it upon myself to consider what points could be made on their behalf. I quote from my judgment :-

"... I have read the skeleton argument of the Respondent in Pham Si Dung, prepared by his counsel, Mr. Philip Dykes. An important point is taken in para. 35 of the skeleton:

'It is wrong to make a detention [order] under section 32(4) of the Immigration Ordinance if there is no prospect of the detainee being able to give evidence within a reasonable time.

Detention should not become indefinite by virtue of the incremental effect of successive orders of detention. Lawful detention may become unlawful simply with the effluxion of time: R. v. Governor of Durham Prison ex p. Singh [1984] 1 WLR 704 at 706 D - F ; Liew Kar-seng v. Governor-in-Council [1989] 1 HKLR 607 at 609 E - J ; R. v. Governor of Richmond Remand Centre ex p. Ashgar [1971] 1 WLR 129 at 132H, 133 A-B, E.'

I have read the passages in those cases. In my view, the principle which can be extracted from them is a relatively narrow one, namely, that any power of detention conferred upon the executive or the Courts must be impliedly limited to the period which is reasonably necessary to achieve the purpose for which the detention is sought. That is a very different principle from the one for which Mr. Dykes [and now Mr. Thomson] contended, which was that if the purpose for which the detention is sought cannot be achieved within a reasonable time, the detention becomes unlawful. However, without deciding what the correct principle is, I propose to proceed today on the assumption most favourable to the Respondents, namely,

(I) that if there is at present no prospect of the Respondents being able to give evidence within a reasonable time, the detention orders sought should not be granted;

(ii) that in determining whether there is, at present, any prospect of them being able to give evidence within a reasonable time, a factor to be taken into account is the length of time which has elapsed since the date when they would otherwise have been repatriated to Vietnam.

Mr. Moorfoot for the Attorney General has told me that that would have been a few months after they had applied for voluntary repatriation. However, they would not all have been repatriated at the same time. Repatriations are staggered to take account of the availability of transport, but I think I ought to assume, for the purpose of these applications, that the Respondents would have been repatriated by June 1992."

I stand by those words today, and I make the same assumptions.

23. I have hitherto assumed that the consequence of my refusal to make detention orders under section 32(4)(b) was that the Respondents would be returned to Vietnam as soon as it was reasonably practicable to repatriate them, and that that could well be before they gave or completed their evidence in the trial. Upon that assumption, I concluded in my earlier judgments that the needs of the trial nevertheless outweighed the Respondents' desire to return to Vietnam as soon as possible. Except for the Respondents in MP 3314/93, MP 3375/93 and MP 3376/93, I remain of that view today. Mr. Power estimated that the Respondents would have completed their evidence by the middle of March, 1994. Even if I add an additional two weeks to cater for the unexpected, the position today is that there is every prospect of the Respondents being able to give their evidence within the next 18 weeks. I regard that still as a reasonable time for them to be kept in Hong Kong when I take account of the length of the time which has elapsed since they would otherwise have been repatriated to Vietnam. As I have said on an earlier occasion, the amount of time for which the Respondents have had to be detained is not because of delay on the part of those responsible for the prosecution, but because our system of criminal justice causes trials of this kind to take a considerable time.

THE INTERESTS OF THE RESPONDENTS : THE RESPONDENTS' ALTERNATIVE CASE

24. I turn to the Respondents' alternative case which was principally argued by Mr. Michael Darwyne. If their return to Vietnam has to be deferred until after they have given their evidence, they wish their stay in Hong Kong to be either outside the detention centre system altogether, or in detention centres where their life would be easier than it is now. Fourteen of the Respondents are currently being detained in Section 9 of the Whitehead Detention Centre. I do not know where the Respondents in MP 3366/93, MP 3376/93, MP 3380/93, MP 3385/93 and MP 3389/93 are being detained, but I shall assume that they are being detained there also. The conditions there are described by Nguyen Thi Hoan, the Respondent in MP 3378/93, in para. 19 of the affirmation she made on 24th November. The Section is used for detaining people who have volunteered to return to Vietnam. The huts in which the Respondents live are overcrowded and uncomfortable. Their tiered bunks are separated by curtains, but there is no privacy to speak of. However, the physical conditions in which they live is nothing, so it is claimed, when compared with the pressures of camp life. Money, valuables and food are extorted by intimidation. Drunkenness is prevalent because of the proliferation of illicit stills, and that creates an atmosphere of violence. These conditions are said to have caused the Respondents anxiety, fear, depression and disorientation, whose impact is claimed to go well beyond their own piece of mind, because it could affect both their willingness to give evidence and their ability to recall the events to which their evidence relates.

25. Moreover, they claim that they live in constant fear for their safety and for that of their children because it is known that they are willing to give evidence. I confess to being sceptical about the truth of that assertion. At earlier hearings, the majority of the Respondents told me that they were not willing to give evidence, Mr. Darwyne asked me to accept that that did not represent their true state of mind. It was, he said, an ill-considered but natural product of their resentment over their treatment. Moreover, I have not been told why other detainees would want to deter them from giving evidence. The Respondents are all from North Vietnam, as are the other detainees in Section 9 of Whitehead, whereas the Defendants in the trial are from South Vietnam. However, I have laid my scepticism to one side, and I have been prepared to assume for the purposes of these applications that the Respondents' claims are correct.

26. If they ate not to be detained in Section 9 of Whitehead, where are they to be held while they wait to give evidence? The Respondents point to the New Horizons Vietnamese Refugee Departure Centre, the Pillar Point Vietnamese Refugee Centre and the Kai Tak Transit Centre. Indeed, it has been suggested that resources can be tapped to find accommodation for them outside the detention centre system altogether. For example, I have been told that the Catholic Diocese of Hong Kong has assisted in making available board and lodging for persons involved in litigation, and there have apparently been other instances in which asylum seekers have been housed with their families outside detention centres.

27. However, the problem for the Respondents is that the question where they should be detained is a matter entirely for the Secretary for Security : section 35(1). Similarly, the question whether they should be allowed to enter into a recognizance to permit their release is a matter entirely for an immigration or police officer : section 36(1). The correctness of those decisions is not a matter for me. If I were to permit these applications to develop into a challenge to those decisions, I would be permitting a collateral challenge to them by a side-wind. Mr. Darwyne was realistic enough to see the force of that point. What he eventually argued, therefore, was that in the balancing exercise I should take account of the facts that the Secretary for Security has considered it inappropriate for the Respondents to be detained at present anywhere other than Whitehead, and that the Director of Immigration is not willing to allow them to enter into a recognizance to permit their release. The fact and misery of their continued detention in Section 9 of Whitehead, coupled with their wish to return to Vietnam as soon as possible, outweighs, it is said, the admitted needs of the trial. I sympathize with the Respondents in their plight, but having given the issue anxious consideration, and having balanced in my mind once again the needs of the trial against the conditions of the Respondents' current detention, I have reached the conclusion that the scales still weigh in favour of granting the orders sought.

THE NOTICES OF ORIGINATING MOTION

28. There is one further issue I must address. Mr. Gerard McCoy on behalf of some of the Respondents took a technical point on the issue of the notices of originating motion. Those notices are the formal documents by which the Attorney General invokes the court's powers to make the orders sought. Ord. 8 r. 3(6) of the Rules of the Supreme Court provides:

"Issue of the notice of an originating motion takes place upon its being sealed by an officer of the Registry."

None of the notices of originating motion has been sealed. Accordingly, the notices have not been issued, says Mr. McCoy, they are not properly before the court, and no orders can be made in respect of them.

29. The importance of the seal is obvious. "The seal is intended to give a clear message to the [Respondent] that he is being served with [an originating motion] by authority of the Supreme Court and not being sent some informal demand" : The Supreme Court Practice 1993, Vol. 1, para. 10/1/15. However, I do not suppose for a moment that when the Respondents and their legal advisors saw the notices of originating motion for the first time, the absence of a seal made them doubt the true provenance of the notices, or caused them to speculate whether the notices had been properly issued. Mr. McCoy did not suggest otherwise.

30. The days when form was treated as more important than substance have long gone. Hence, Ord. 2 r. 1(1) of the Rules of the Supreme Court provides that the failure to comply with a requirement of rules of court should not nullify the proceedings. Mr. McCoy along with other counsel exhorted me throughout the hearing to "live in the real world". I would be doing the very opposite if I ruled that the merits of the Attorney General's applications could not be adjudicated upon or given effect to merely because of a clerical error which no-one but Mr. McCoy noticed. I therefore decline Mr. McCoy's invitation to me to dismiss the Attorney General's applications on the ground that the notices in which they are made were not properly issued.

CONCLUSION

31. For these reasons, I propose to order that all the Respondents, with the exception of those three Respondents in MP 3314/93, MP 3375/93 and MP 3376/93, be detained pursuant to section 32(4)(b) for a period of 14 days from 3rd December when the current detention orders in respect of them expire. I assume that the Attorney General will be applying for further detention orders in the future. If he does, he must expect to deal with the arguments which could not be developed through lack of time to argue them.

32. Finally, I wish to express my personal thanks to counsel and solicitors who have selflessly undertaken the representation of the Respondents on a pro bono basis. I have found their assistance invaluable. In saying that, I intend no criticism of the Director of Legal Aid for discharging the legal aid certificates which she had at one time granted to a number of the Respondents. In view of the unfavourable advice as to the Respondents' chances of successfully opposing these applications for detention orders which the Director of Legal Aid received from experienced counsel instructed by her, her decision to discharge the certificates was understandable.