Re Chung Tu Quan and Others

H E A D N O T E

(1) In proceedings for a writ of habeas corpus, the initial evidential burden is on the Applicant to produce the evidence which puts the legality of his detention in issue. However, once that has been done, the legal burden is upon the Respondent to establish that the Applicant's detention is lawful. If the legality of the Applicant's detention depends (a) on facts which are in dispute or not admitted or (b) on what is reasonable, it is for the Respondent to prove (a) those facts or (b) its reasonableness.

(2) An order for detention under section 13D(1) of the Immigration Ordinance (Cap. 115) may be made without considering the individual circumstances of the proposed detainee, and the rules of natural justice do not require that the proposed detainee be afforded an opportunity to make representations as to why he should not be detained.

(3) An order for removal under section 13E(1) of the Immigration Ordinance is not a necessary pre-condition of the exercise of the power of detention under section 13D(1) pending the detainee's removal from Hong Kong.

(4) A power of detention which is not expressed to be limited in duration is nevertheless to be regarded as impliedly limited to (a) such period as is reasonably necessary to achieve the purpose for which the power was granted and (b) those cases in which that purpose can be achieved within a reasonable time. It is for the court, and not just for the person in whom the power was vested, to determine (a) what period was reasonably necessary to achieve the purpose for which the power was granted, and (b) whether that purpose could be achieved within a reasonable time.

(5) The steps necessary to achieve the purpose for which the power was granted must be taken with all reasonable expedition.

(6) Even if detention was lawful at the time at which the order for detention was made, the detention will become unlawful if, with the passage of time, the purpose for which the power of detention was granted becomes incapable of being achieved within a reasonable time. In determining what is a reasonable time, a relevant factor is whether any delay was caused by factors beyond the control of the person in whom the power of detention was vested.

1994 MP No. 3417

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

_______________

J U D G M E N T

_______________

1. INTRODUCTION

In the 20 years since the fall of Saigon in 1975, thousands of people have fled Vietnam seeking a new life overseas. Many of them came to Hong Kong. A large majority of those who came to Hong Kong have now been repatriated back to Vietnam or have been re-settled elsewhere. But a number of them have not. They remain in detention in Hong Kong. Some of them have been in detention for many years. In these proceedings for writs of habeas corpus, 11 of them have applied for their release.

2. The plight of a particular group of migrants from Vietnam (as Vietnamese boat people are now called) was considered by Sears J. in Re Pham Van Ngo [1991] 1 HKLR 499. He spoke eloquently about the suffering which migrants from Vietnam undergo, and about the burden which Hong Kong is shouldering in seeking to accommodate and deal with them - a burden which Sears J. said must at times seem to the citizens and Government of Hong Kong to be intolerable. I share his concern about the detention without trial of so many people for so long, but I recognise, like him, that my role is limited to an examination of the legality of the detention of the present Applicants.

3. However, in one respect, my approach has to have a broader focus than that of Sears J. Sears J. said at p. 501B-C :

"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[s] of Vietnamese being admitted into the community, all these matters, important as they are, are not for me to deal with, nor even comment upon."

For my part, I do not comment on whether that was the correct approach in that case, but in my view the legality of the present Applicants' detention cannot be determined without looking at the context in which they are being detained. The facts which caused them to be detained in the first place, and the factors which have contributed to the length of their detention, are highly material to whether their current detention is lawful. For that reason, I must rehearse the historical background of the migration to Hong Kong in recent years of asylum-seekers from Vietnam. Unless otherwise stated, 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 HISTORICAL BACKGROUND

4. The history of the migration to Hong Kong of migrants from Vietnam is well-known. Useful summaries appear in a number of previous cases - in particular in the judgments of Jones J. in Re Tran Quoc Cuong and Khuc The Loc [1991] 2 HKLR 312, and Mortimer J. (as he then was) in R. v. The Director of Immigration and the Refugee Status Review Board ex p. Do Giau [1992] 1 HKLR 287. I have drawn on those judgments in order to relate those parts of the history which seem to me to be relevant to the issues which I have to decide.

5. When migrants from Vienam first began to arrive in Hong Kong in 1975, the policy of the Hong Kong Government was to grant them first asylum in Hong Kong pending their resettlement elsewhere. That policy was confirmed by the British and Hong Kong Governments at the International Conference on Indo-Chinese Refugees held in Geneva in 1979, where it was agreed that migrants from Vietnam would be excepted from the usual procedures for dealing with asylum-seekers, refugees and illegal immigrants. The overwhelming majority of migrants from Vietnam would continue to be granted refugee status without having to undergo screening to determine whether they should be accorded such a status, but that was on the understanding that the rate of arrivals in Hong Kong and in other countries of first asylum would be matched by a programme for resettlement internationally.

6. In 1982, the Hong Kong Government introduced its closed camp policy. The Government remained committed to the policy of first asylum, but from 2nd July 1982, all migrants who arrived directly from Vietnam and were given permission to remain in Hong Kong were detained in closed centres pending resettlement elsewhere. A warning notice which was read to all migrants from Vietnam on their arrival in Hong Kong informed them of the closed camp policy. The message, therefore, to those living in Vietnam who were minded to flee to Hong Kong was that if they did so, they would be detained until they could be resettled somewhere else.

7. By 1988, the international community had become less ready to accept migrants from Vietnam for resettlement. The result was that the pattern of resettlement was failing to match the pattern of arrivals - so much so that there had accumulated what Cons V.-P. described in Nguyen Ho v. The Director of Immigration [1991] 1 HKLR 576 as "a vast backlog of [migrants] held [in Hong Kong] with little or no prospect of imminent resettlement elsewhere". Moreover, the received opinion was that most of the migrants arriving in Hong Kong from Vietnam would not merit refugee status under the relevant international agreement, namely the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol to it.

8. It was for these reasons that the policy of granting automatic refugee status was discontinued. Since 16th June 1988, migrants from Vietnam who arrive in Hong Kong and choose not to continue their journey have been treated as illegal immigrants unless given permission to remain in Hong Kong as refugees. A new notice, to be read to all migrants from Vietnam on their arrival in Hong Kong, was prepared. That read :

"There is a new policy in force in Hong Kong. Former residents of Vietnam seeking to enter Hong Kong are now treated as illegal immigrants on arrival. 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 you will be detained as an illegal immigrant pending repatriation to Vietnam."

9. The procedure for determining whether a migrant from Vietnam should be accorded refugee status had not been established when this new policy came into force. The first system which was introduced proved too cumbersome in practice, and was quite inadequate to cope with the number of arrivals. By April 1989, arrivals were such that it would have taken 5 years to complete the screening process. Accordingly, the system was streamlined into the procedure which has continued to operate until today, and which was established in consultation with the Office of the United Nations High Commissioner for Refugees ("the UNHCR"). Put simply, the migrant is initially interviewed by an immigration officer in order to obtain personal data and to record his claim for refugee status. He will then be interviewed by an immigration officer in greater detail on the basis of a questionaire drafted by the UNHCR. His family will also be interviewed. The officer's decision, which is recorded on the file together with his reasons, is then passed to a senior immigration officer or a chief immigration officer, depending on the apparent complexity of the case, for endorsement or review. An appeal against the refusal of refugee status is by way of review by the Refugee Status Review Board.

10. The establishment of a screening procedure resulted in further changes being made to the notice read to migrants from Vietnam on their arrival in Hong Kong. Since August 1989, the notice has read :

"Illegal immigrants are not welcome in Hong Kong and there is no future in Hong Kong for them. If you choose to remain you will be subject to a screening procedure to determine whether you have a genuine claim for refugee status. You will be placed in a detention centre until this procedure is carried out. You will not be permitted to leave the detention centre and will not be allowed to take outside employment. If following the screening procedure it is decided that you are an economic migrant, and therefore an illegal immigrant, you will remain in detention pending repatriation to Vietnam. The majority of persons screened have been found to be economic migrants. You are free to leave Hong Kong only if you do so immediately, or else you will be detained and treated in accordance with the above."

Accordingly, the message since 1988 to those living in Vietnam who were minded to flee to Hong Kong was that if they did so, they would be detained pending the determination of their claim for refugee status, and if that claim was rejected, they would be detained pending their repatriation to Vietnam.

11. Compassion fatigue on the part of the international community was not the only reason why the pattern of resettlement was failing in 1988 to match the pattern of arrivals. 1988 saw a significant increase in the number of arrivals. A total of about 8,800 migrants from Vietnam had arrived in Hong Kong between 1984 and 1987, but in 1988 a total of 18,328 arrived, followed in 1989 by a further 34,114. Indeed, in the period from 1988 to 1992, the number of arrivals totalled about 71,300. It is well known that the resources which have had to be devoted to the accommodation and the screening of these arrivals have been considerable, and the social and political repercussions of the presence in Hong Kong of so many migrants from Vietnam have been immense.

12. Despite that, the statistics which I have been provided with show that since the introduction of the screening procedure, and up to 12th December 1994, a total of 59,190 migrants from Vietnam have completed all stages of the screening and review procedures. Of these, 10,470 have been accepted as refugees, while 48,220 have been refused refugee status. The screening process has now been essentially completed, except for a very small number of cases where the re-screening of the migrants concerned has been considered to be warranted. As for the time which the screening process takes, the evidence before me is that 2 years was not untypical for migrants who arrived in Hong Kong in the summer of 1990, but many cases dealt with since then have taken longer.

THE LEGISLATIVE FRAMEWORK

13. The history of the influx of migrants from Vietnam into Hong Kong has been reflected in the legislation which authorises their detention in Hong Kong. In 1981, the Immigration Ordinance was amended by the Immigration (Amendment) Ordinance 1981 (No. 35 of 1981) to add a new Part - Part IIIA - which was headed "Vietnamese Refugees". The policy of first asylum was reproduced in section 13A(1), which enabled an immigration officer to permit a former resident of Vietnam "to remain in Hong Kong as a refugee pending his resettlement elsewhere".

14. The introduction of the closed camp policy in 1982 received the necessary statutory underpinning when the Ordinance was further amended by the Immigration (Amendment) Ordinance 1982 (No. 42 of 1982). Section 13A(1) was amended to enable an immigration officer to order a former resident of Vietnam who arrived in Hong Kong on or after 2nd July 1982 "to be detained in a refugee centre". Since the overwhelming majority of migrants from Vietnam were accorded refugee status without having to undergo screening to determine their status as refugees, the indefinite power of detention in a refugee centre conferred by section 13A(1) was the primary power of detention used for migrants arriving in Hong Kong from Vietnam after 2nd July 1982.

15. However the Immigration (Amendment) Ordinance 1982 also introduced a new section 13D. Since the detention of the present Applicants is purportedly pursuant to section 13D, it is necessary for me to scrutinise it with care. Section 13D(1) provided, so far as is material, as follows :

"As from 2 July 1982 any resident or former resident of Vietnam who arrives in Hong Kong [without a valid travel document] ... may ... be detained under the authority of the Director in such place as the Director may specify pending a decision to grant or refuse him permission to remain in Hong Kong as a refugee or, after a decision to refuse him permission to remain in Hong Kong, pending his removal from Hong Kong."

The fact that section 13D(1) sanctioned the detention of migrants from Vietnam

(a) in a place which the Director might specify, as opposed to section 13A(1) as amended, which sanctioned their detention in a refugee centre, and

(b) pending a decision to accord them refugee status,

shows that section 13D(1) related to those few migrants from Vienam to whom the policy of according automatic refugee status did not apply for one reason or another. Accordingly, the power of detention provided for by section 13D(1) was obviously ancillary to the primary power of detention under section 13A(1) as amended for migrants arriving in Hong Kong from Vietnam after 2nd July 1982. Mr. William Marshall Q.C. for the Respondents, who I take to be the superintendents of the various detention centres in which those of the Applicants who are still in detention are being held, has told me from the Bar Table that in practice the overwhelming majority of migrants who arrived in Hong Kong from Vietnam between 2nd July 1982 and 16th June 1988 were detained under section 13A(1) as amended, rather than under section 13D(1). Although Mr. Peter Graham for the Applicants objected to Mr. Marshall giving evidence in that way, what Mr. Marshall told me follows from the language of the two sections when seen in the context of the policies which they implemented.

16. The discontinuance in 1988 of the policy of granting automatic refugee status inevitably resulted in a shift in the use of the powers of detention. Mr. Marshall told me from the Bar Table that section 13D(1) became the primary detention power for migrants arriving in Hong Kong from Vietnam after 16th June 1988. Again, Mr. Graham was unhappy that I was told that. But since section 13D(1) had, since 1982, been used to detain those few migrants from Vietnam to whom the policy of according automatic refugee status did not apply for one reason or another, it was inevitable that section 13D(1) was going to be used to detain the very many migrants who arrived in Hong Kong from Vietnam after 16th June 1988 without the prospect of automatic refugee status.

17. In November 1990, Sears J. delivered his celebrated judgment in Pham Van Ngo. The group of migrants from Vietnam to whom that case related had all been detained under section 13D(1) - purportedly pending a decision to grant or refuse them refugee status. Sears J. held that their detention was unlawful. One of his reasons for doing so related to the length of their detention. They had been detained for 18 months, and Sears J. took the view (see p. 508A-C) that the evidence he had heard relating to

(a) the number of migrants from Vietnam in detention awaiting screening,

(b) the average time it took for the screening process to be completed, and

(c) the limited manpower and financial resources available for the screening process,

did not justify detention for as long as 18 months. However, Sears J. was thought by some commentators to have gone further than that, and to have expressed the view that detention for as long as 18 months could never be justified under section 13D(1). Indeed, at p. 508C, he said that, in his judgment, "if detention is under section 13(D), then a period of 18 months is unreasonable".

18. Mr. Marshall told me from the Bar Table that one of the subsequent amendments which the legislature made to section 13D represented an attempt

(a) to reflect the concern that Sears J. might have decided that detention under section 13D(1) for a particular period of time would automatically be regarded as unlawful, and

(b) to emphasise the need for the courts to take account of all relevant factors when deciding whether detention under section 13D had become unlawful with the passage of time.

Mr. Marshall referred me to various passages in the speech of Mr. Alistair Asprey, the Secretary for Security, when he moved the second reading of the Bill which became the Immigration (Amendment) Ordinance 1991(No. 52 of 1991), and a passage in the speech of Mrs. Rita Fan, the Chairman of the Ad Hoc Committee scrutinising the Bill, on the resumed second reading of the Bill: Hong Kong Legislative Council, 24th April 1991 and 29th May 1991, Reports of Debates, pp. 1731-1732 and p. 2160. I have not taken account of what Mr. Marshall told me, nor what Mr. Asprey and Mrs. Fan said, because in my view the amendments which were made to section 13D and to which Mr. Marshall refers speak for themselves.

19. Section 13D(1) was amended by the 1991 Ordinance to read as follows :

"As from 2 July 1982 any resident or former resident of Vietnam who ... arrives in Hong Kong [without a valid travel document] ... may, whether or not he has requested permission to remain in Hong Kong, be detained under the authority of the Director in such detention centre as an immigration officer may specify pending a decision to grant or refuse him permission to remain in Hong Kong or, after a decision to refuse him such permission, pending his removal from Hong Kong ...."

That amendment achieved two purposes. First, the power of detention under section 13D(1) is not triggered by a request on the part of the migrant to remain in Hong Kong. It is triggered on the arrival of the migrant in Hong Kong. The amendment was obviously designed to meet the facts of Pham Van Ngo, in which the migrants never intended to remain in Hong Kong, but only arrived in Hong Kong so that the vessel in which they were travelling to Japan could be repaired. Secondly, the amendment enabled the migrant to be detained in a detention centre.

20. The 1991 Ordinance also added a new section 13D(1A). That was the section to which Mr. Marshall was referring. It reads :

"The detention of a person under this section shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to all the circumstances affecting that person's detention, including -

(a) in the case of a person being detained pending a decision under section 13A(1) to grant or refuse him permission to remain in Hong Kong as a refugee -

(i) the number of persons being detained pending decisions under section 13A(1) whether to grant or refuse them such permission; and

(ii) the manpower and financial resources allocated to carry out the work involved in making all such decisions;

(b) in the case of a person being detained pending his removal from Hong Kong -

(i) the extent to which it is possible to make arrangements to effect his removal; and

(ii) whether or not the person has declined arrangements made or proposed for his removal."

21. Section 13D(1A)(a) relates to the period during which a migrant from Vietnam is detained pending screening, i.e. the period with which Sears J. was concerned in Pham Van Ngo. The court is expressly required, in considering whether the period of detention is reasonable, to take into account the number of persons to be screened, and the manpower and financial resources allocated to that task. Section 13D(1A)(b) relates to the period during which a migrant from Vietnam, who has not been accorded refugee status in the screening process, is detained pending his removal from Hong Kong. The court is expressly required, in considering whether that period is reasonable, to take into account the speed at which repatriation to Vietnam can be affected, and the extent to which a migrant has not co-operated in any arrangements for his repatriation to Vietnam. To the extent, therefore, that a migrant has refused to be repatriated to Vietnam voluntarily, and to the extent, therefore, that that has delayed his repatriation to Vietnam and has lengthened his period of detention in Hong Kong, the court is obliged to take that into account in considering whether the period of his detention is reasonable. Mr. Graham did not disagree with any of that.

22. The 1991 Ordinance also added a new section 13D(1B). It reads :

"The detention of a person under this section pending a decision under section 13A(1) to grant or refuse him permission to remain in Hong Kong as a refugee shall not be unlawful by reason that other persons (who may or may not have arrived in Hong Kong after the detainee) who were detained pending decisions under section 13A(1) to grant or refuse them such permission were granted or refused such permission within periods shorter than the period of the person's detention."

In my view, this section speaks for itself as well. It relates to the period during which a migrant from Vietnam is detained pending screening. The legislature was discouraging comparisons over the length of detention in individual cases. The fact that some detainees may have been detained pending screening for shorter periods than the periods during which the present Applicants were detained pending screening cannot by itself render the detention of the Applicants unlawful.

REPATRIATION TO VIETNAM

23. Those migrants from Vietnam who have not been accorded refugee status in the screening process are repatriated to Vietnam. That is in accordance with the Comprehensive Plan of Action ("the CPA") approved at the International Conference on Indo-Chinese Refugees in June 1989, which provided that "[p]ersons determined not to be refugees should return to their country of origin". Not surprisingly, the policy of the Government of Hong Kong is to repatriate them to Vietnam as soon as possible. The sooner they are repatriated, the sooner the burden of accommodating them in Hong Kong is alleviated, and such social and public order problems which are associated with their presence in Hong Kong are reduced. That is also in accordance with the CPA, which aimed at the repatriation of persons who had not been accorded refugee status "within the shortest possible time".

24. The Hong Kong Government also prefers those migrants from Vietnam who have not been accorded refugee status to return to Vietnam voluntarily. Again, that is in accordance with the CPA, which provided that "[i]n the first instance, every effect will be made to encourage the voluntary return of such persons". Accordingly, a Voluntary Repatriation Scheme has been in place since March 1989. The scheme is administered by the UNHCR, and about 43,600 people have been repatriated to Vietnam under it. The UNHCR have tried to encourage migrants from Vietnam to volunteer for repatriation by providing them with cash incentives, euphemistically known as "re-integration assistance".

25. However, some of the migrants from Vietnam who have not been accorded refugee status are unwilling to return to Vietnam voluntarily. Accordingly, an alternative scheme has been in place for them since November 1991. It is euphemistically called the "Orderly Repatriation Programme". The UNHCR has nothing to do with this scheme. It is administered by the Governments of Hong Kong and Vietnam, and by 14th December 1994 about 1,175 people had been repatriated to Vietnam under it. The current rate of repatriation under the Orderly Repatriation Programme is about 400 people a year, but it is hoped to agree an accelerated rate of return with the Vietnamese authorities in the near future.

26. I shall come in a moment to the mechanics of the Voluntary Repatriation Scheme and the Orderly Repatriation Programme. But the success of both schemes depends on

(a) the speed with which the Vietnamese authorities can process individual detainees, and

(b) the willingness of the Vietnamese authorities to accept them back.

The current position, though, is that from a peak of about 65,000 in 1991, there are about 25,000 migrants from Vietnam in Hong Kong. Of those, about 2,000 have been accorded refugee status and are awaiting resettlement elsewhere, and about 23,000 have not been accorded refugee status and are awaiting repatriation to Vietnam.

(i) The Voluntary Repatriation Scheme. The speed with which the Vietnamese authorities are supposed to process applications for voluntary repatriation is governed by a Memorandum of Understanding between the Government of Vietnam and the UNHCR which was signed in December 1988. It provided that the Government of Vietnam would ensure that each application for voluntary repatriation would be processed, and the UNHCR notified of a decision, within 3 months from the date of its submission by the UNHCR to the Vietnamese authorities. However, whatever was agreed in 1988 as the time-table for the processing of applications for voluntary repatriation is not a reliable guide as to how long the processing was taking by, say, 1993. Indeed, the evidence before me is that the time-table has never been strictly enforced, and there are a number of examples of cases taking much longer to process than the original time-table envisaged.

27. What happens is that a detainee obtains an application form for voluntary repatriation from the UNHCR. It includes a box in which the detainee is required to insert his nationality. After completion, he returns it to the UNHCR. In due course, he is moved to a detention centre reserved for persons who are applying for voluntary repatriation to Vietnam. Meanwhile, the application form is passed by the UNHCR to the Vietnamese authorities, who will then investigate whether the information given by the detainee is accurate by checking it against the detainee's local household registration in Vietnam. The detainee will also be interviewed by Vietnamese officials in Hong Kong. The investigations can be carried out either before or after that interview. But if the investigations prove inconclusive, the detainee will be interviewed again if the investigations took place after his first interview. Not surprisingly, the process can take a considerable time, and while it is going on, the UNHCR is simply informed that the application is pending. At regular intervals, the UNHCR inform the Refugee Control Centre of the Security Branch of the cases which are pending. Those lines of communication reflect the fact that the Voluntary Repatriation Scheme is administered by the UNHCR. It means that whatever the Refugee Control Centre may have heard informally about the status of a particular detainee's application for voluntary repatriation, the Refugee Control Centre can only really go on the information which it gets from the UNHCR.

28. Mr. Robert Brook, a solicitor with Pam Baker & Co., the Applicants' solicitors, has filed an affidavit saying that an application which is said to be pending is known by everyone to be an application which has already been refused because the detainee has not been regarded as a Vietnamese national. Mr. Brook does not identify his source for that information, and although I do not doubt for one moment that that is the information he has been given, I am sceptical as to its accuracy. There may be a number of reasons why the Vietnamese authorities will refuse to accept a particular detainee for repatriation, and I do not know why a particular reason - lack of Vietnamese nationality - should be assigned a unique form of shorthand. Moreover, the UNHCR is not prepared to confirm that cases which have been classified as pending mean that the application has been refused for a particular reason. That is what Mr. Choy Ping Tai, the Assistant Director of the Vietnamese Refugees Branch of the Immigration Department, says Mr. Michael Lindenbauer, the Acting Assistant Chief of Mission of the UNHCR in Hong Kong, recently told him.

(ii) The Orderly Repatriation Programme. The Orderly Repatriation Programme operates in a different way. The Vietnamese Refugees Branch periodically submits the particulars of proposed returnees to the Vietnamese authorities for them to process. The Vietnamese Refugees Branch cannot submit the particulars of too many returnees at any one time, for fear that the Vietnamese authorities (who have a staff constraint problem) will be swamped. The submission of the particulars is therefore staggered. Mr. Choy was reluctant to disclose the basis on which the order for the submission of particulars is determined, and Mr. Graham did not press Mr. Choy to do so when he cross-examined Mr. Choy. However, none of the particulars submitted in 1994 had been processed by the Vietnamese authorities by 14th December 1994. The Branch aim to have submitted the particulars of all proposed returnees by the end of 1995, which is well ahead of the current capacity of the Vietnamese authorities to process them. As it is, the statistics which I was provided with show that the particulars of about 12,000 proposed returnees have been submitted to the Vietnamese authorities. Of that number, about 5,500 had been processed and identified by the Vietnamese authorities by 21st December 1994.

29. The particulars of proposed returnees under the Orderly Repatriation Programme are submitted to the Vietnamese authorities in a form agreed with the Government of Vietnam. There is no specific box for recording a returnee's nationality. However, if a returnee is not a Vietnamese national, that is likely to be picked up by the Vietnamese authorities in the processing exercise. That is because

(a) the form gives details of where in Vietnam the returnee originated from, what his last address in Vietnam was, and the names and addresses of any close relatives of his living in Vietnam,

(b) that information is checked by the Vietnamese authorities against the returnee's local household registration or his residential file,

(c) it is very likely that if a returnee has foreign nationality or a Foreign Resident's Permit, that information will be gleaned from the local household registration or his residential file.

EX-CHINA VIETNAMESE ILLEGAL IMMIGRANTS

30. Some of the migrants arriving in Hong Kong who claimed to have come from Vietnam have instead been found to have come from China. They are for the most part ethnic Chinese who used to live in Vietnam but who fled from Vietnam to China, primarily as a result of the anti-Chinese campaign in Vietnam, which reached its height in the late 1970s and the early 1980s. If it is determined that such a person has settled in China before coming to Hong Kong, he will not have the benefit of being considered for refugee status. Instead, he will be treated in the same way as any other illegal immigrant from China, and will be repatriated to China. Such persons are called "Ex-China Vietnamese Illegal Immigrants" ("ECVIIs"), though concerned groups, such as Refugee Concern, regard that label as inappropriate and unjust. They prefer to call them "Ex-China Vietnamese Illegal Detainees". I hope that no-one accuses me of pre-judging their status if I call them ECVIIs, which was how they were called by both sides in the hearing before me.

31. Before an ECVII can be repatriated to China, it is necessary to obtain the requisite confirmation from the Chinese authorities that he will be accepted as a former Chinese resident. The statistics which I have been provided with show that since 1979 about 23,500 people have been determined to be ECVIIs, and have been repatriated to China.

THE GENESIS OF THESE PROCEEDINGS

32. In May 1994, Refugee Concern published a report from its Legal Sub-Committee relating to those Cambodians who had fled to Hong Kong from Vietnam and who continued to be detained in Hong Kong. The report argued that their detention was unlawful, inter alia, because there was no prospect of them being repatriated to Vietnam, since Vietnam refused to accept them on the footing that they were not Vietnamese nationals. By the beginning of September 1994, all 56 Cambodians had been released from detention. The evidence before me is that they were released because they were accorded refugee status. In the light of a critical issue of fact which the current applications before me raise, I should say that there is no evidence before me that they were released because it was accepted that Vietnam refused to accept the repatriation of persons who are not Vietnamese nationals.

33. Refugee Concern then turned their attention to other groups of detainees who had fled to Hong Kong from Vietnam and who Refugee Concern believed would never be accepted for repatriation by Vietnam because they were not Vietnamese nationals. Their solicitors, again Pam Baker & Co., requested a meeting with officials in the Security Branch to discuss these groups of detainees. However, the Security Branch took the view that such a meeting would not serve any useful purpose at the time. Eventually, on 1st November 1994, Refugee Concern published a report from its Legal Sub-Committee relating to these groups of detainees. The report argued that they were being unlawfully detained. It called for their immediate release from detention, and announced that proceedings for writs of habeas corpus would be commenced if they were not released.

34. On 15th November 1994, the Government released 125 migrants from Vietnam who were being detained under section 13D(1). The answers given by Mr. Brian Bresnihan, the Government's Refugee Co-ordinator, when he was questioned two days later at a hearing of the Legislative Council Security Panel, showed that they were released because it was accepted that their continued detention would be unlawful as it was "not possible to remove them [from Hong Kong] within a reasonable period of time". Mr. Bresnihan added that all 125 had volunteered to be repatriated to Vietnam, but that "the reason why the Vietnamese [authorities had] refused to take them back so far is that they are concerned that they may not be bona fide residents of Vietnam". It is argued on behalf of those of the current Applicants who are still in detention that if the current detention of those who have been released would have been unlawful, their continued detention is also unlawful. I cannot decide that issue because I would need to know the circumstances of the 125 detainees who have been released, though I note that they had all volunteered for repatriation, whereas 3 of the 4 Applicants still in detention have never volunteered for repatriation, and I shall be finding that the fourth was thought to have withdrawn his application for voluntary repatriation.

35. Following the release of the 125 detainees, Pam Baker & Co. wrote to Mr. Asprey on 25th November. They alleged that there were 3 categories of detainees who continued to be unlawfully detained. They were :

(i) Those detainees who had applied for voluntary repatriation to Vietnam but who had not been accepted for repatriation by Vietnam, either because they were not Vietnamese nationals or for some other reason. The 8th Applicant is said to come within that category.

(ii) Those detainees who would not have been accepted for repatriation to Vietnam, even if they had volunteered for repatriation, because they were not Vietnamese nationals. The 9th, 10th and 11th Applicants are said to come within that category.

(iii) Those detainees classified as ECVIIs who had not been accepted for repatriation by China for one reason or another. The first 7 Applicants are said to come within that category.

The Government's response was that no-one was being detained unlawfully. The next step was the commencement of these proceedings on 2nd December 1994 for writs of habeas corpus.

THE CURRENT PROCEEDINGS

36. Originally, 11 detainees apply for their release. I trust that I will be forgiven for referring to them for convenience as A1-A11. However, 2 of the Applicants, A1 and A6, were released on 2nd December (the day the proceedings commenced), and 4 of them were subsequently released: A7 on 9th December, and A2, A3 and A4 on 13th December. They were all released on their own recognisance. These 6 Applicants had, at one time or another, been classified as ECVIIs, and it was suggested to me that their release was no more than a cynical attempt to prevent the court determining whether the detention of those detainees classified as ECVIIs and who had not been accepted for repatriation by China for one reason or another was unlawful. For his part, Mr. Marshall asserts that their release was not linked to these proceedings at all: decisions which had recently been made by other countries in relation to these 6 Applicants would inevitably have led to their release sooner rather than later, and the most that could be said was that the proceedings had focused attention on the impact of those decisions on their detention more quickly than might otherwise have been the case.

37. That assertion is borne out by such facts as I have relating to these 6 Applicants. China had very recently decided, following the visit in November 1994 of a Chinese delegation to Hong Kong to interview those classified as ECVIIs who remained in detention, not to permit the repatriation to China of A2, A3 and A4 and their families, because it was not satisfied that they had ever resettled in China. They were therefore released because there was no prospect of their repatriation to China. In late November, the UK had agreed to accept the resettlement of A6, and on 7th December, it had agreed to accept the resettlement of A7 and her children. They were therefore released for that reason. The case of A1 is slightly more complicated. She had a common law husband by whom she had a son, and by whom she was in December 1994 seven months' pregnant. Her husband's application for voluntary repatriation to Vietnam had recently been rejected by the Vietnamese authorities, and he was one of the 125 detainees released on 15th November because there was no prospect of his repatriation to Vietnam within a reasonable time. She and her son were released because of his release, and since he was released because of the recent decision of the Vietnamese authorities not to permit him to return to Vietnam, it was that which was the indirect reason for her release.

38. In the circumstances, I do not propose to say any more about the reasons for the release of these 6 Applicants. The fact of their release, however, prompted Mr. Graham to seek leave to withdraw the applications for writs of habeas corpus in their cases. To the extent that leave is necessary, I give leave: if a person charged with a criminal offence who is remanded on bail cannot in law apply for his unconditional release by an application for a writ of habeas corpus (see the judgment of Fuad V.-P. in Attorney-General v. David Chiu [1992] 2 HKLR 84 at pp. 106-107), a writ of habeas corpus is an inappropriate remedy for a person released from detention on his own recognisance. Although not material to my decision, I should add that I am satisfied that their release on their own recognisance, as opposed to their unconditional release, is lawful (assuming, of course, that their detention under section 13D(1) was itself lawful). That is because orders for their removal from Hong Kong under section 13E have been made. Those orders triggered the power of the Director to detain them under section 32(1), which itself triggered the power of an immigration officer, under section 36(1)(a), to require them to enter into recognisances and release them.

39. Of the five remaining Applicants, one of them, A5, has been released from detention since the hearing before me was completed and I reserved judgment. A5 was repatriated to China on 12th January. I have, of course, heard the arguments as to whether his detention prior to 12th January was unlawful, and I summarised those arguments in the interlocutory ruling I gave on 20th December in relation to Mr. Graham's application for leave to cross-examine Mr. Bresnihan and Mr. Choy. In the end, I have come to the conclusion that I should resist the temptation to determine whether A5's detention prior to 12th January was unlawful. Since he has now been released, there is no order that I can make on his application. The case of A5, now that he has been released since the hearing commenced, is no different from the 6 Applicants who were released before the hearing commenced.

40. There is one other reason why I am reluctant to decide whether A5's detention prior to 12th January was unlawful. A5 was at one time classified as an ECVII. He is the only one of the remaining Applicants to have been so classified. His case raises different questions from those raised in the cases of the other four remaining Applicants. Moreover, the legality of the detention of ECVIIs is to be considered in the application of Tran Dat and six others (HCMP 3562/94). It is therefore not as if the issues of principle which the case of A5 would have raised had he not been released from detention are not going to be decided.

THE BURDEN OF PROOF IN HABEAS CORPUS PROCEEDINGS

41. Before I examine the cases of the four remaining Applicants, there is one other matter I must address. That is the burden of proof in habeas corpus proceedings. Two cases have been cited to me in connection with the burden of proof in such proceedings: R. v. The Governor of Risley Remand Centre ex p. Hassan [1976] 1 WLR 971 and Khawaja v. The Secretary of State for the Home Department [1984] A.C. 74. I have also readR. v. The Governor of Brixton Prison ex p. Ahsan [1969] 2 Q.B. 222, and the discussions on the topic in Sharpe, The Law of Habeas Corpus, 2nd ed., pp. 85-91, and Wade and Forsyth, Administrative Law, 7th ed., pp. 335-337. In the light of these materials, my conclusions are as follows.

42. The initial evidential burden is undoubtedly on the Applicants. It is for them to produce the evidence to put the legality of their detention in issue. That has been done. Apart from anything else, the length of their detention is such as to raise obvious questions as to its legality. However, once the legality of their detention has been put in issue, the legal burden is on the Respondents. It is for the Respondents to establish that the Applicants' detention is lawful. That means that if the legality of the Applicants' detention is dependent on facts which are in dispute or are not admitted by the Applicants, it is for the Respondents to prove those facts. And if the legality of the Applicants' detention is dependent on what is reasonable in all the circumstances, it is for the Respondents to prove its reasonableness.

THE FOUR REMAINING APPLICANTS

43. The four remaining Applicants all claim to have Taiwanese nationality, and it is claimed that that is the reason why their repatriation to Vietnam is not possible. There is no evidence before me as to the criteria by which the Vietnamese authorities determine whether someone has Taiwanese nationality, but the evidence before me shows that there are two types of passport issued by the Taiwanese authorities to ethnic Chinese :

(1) A passport which confers a right on its bearer to enter Taiwan during the period of the passport's validity. It refers to the bearer as a national of the Republic of China.

(2) A passport which contains a request to a foreign country to permit the bearer to travel to that country. Although it refers to the bearer as a national of the Republic of China, it does not confer a right on its bearer to enter Taiwan, and never in Mr. Choy's 25 years' experience as an immigration officer has he known such a passport by itself to have enabled its bearer to enter Taiwan. Any ethnic Chinese living outside Taiwan may apply for such a passport for his own travelling convenience, and they are usually issued by the Taiwanese authorities outside Taiwan. Such a passport is a relic of the civil war in China, and is no more than a travel document conferring no right to nationality.

Against that background, I turn to the cases of the 4 remaining Applicants individually. The cases of A9, A10 and A11 are very similar to each other, but it is still necessary for me to set out the facts relating to each of them.

(i) A8. A8 is Chinese by ethnic origin. His parents were born in China, but they fled to Vietnam in 1949 when the communists came to power in China. A8 himself was born in Vietnam in 1954. All the members of his family, including his wife, his children, his brothers and sisters, his parents and his parents-in-law are still in Vietnam. He arrived in Hong Kong in December 1989. An order for his detention was made under section 13D(1) pending a decision to grant or refuse him refugee status. He has been detained in Hong Kong ever since. In October 1991, he was refused refugee status, and a further order for his detention was made under section 13D(1) pending his removal from Hong Kong. In February 1992, the Refugee Status Review Board confirmed the decision to refuse him refugee status, and (as it was entitled to under section 13F(5)) made a further order for his detention under section 13D(1) pending his removal from Hong Kong.

44. In August 1993, A5 applied for voluntary repatriation to Vietnam. He was then being held in High Island Detention Centre. His application form for voluntary repatriation gave his nationality as Taiwanese. In fact, he was not a Taiwanese national at all. He had admitted to the immigration officer who had interviewed him in the screening process that his father had bought a forged Taiwanese document which showed him as having Taiwanese nationality in order to enable him to avoid conscription. That document was a Taiwanese passport of the type which did not confer a right on the bearer to enter Taiwan, and it was in the name of "Khou Boun", who had been born in Cambodia in 1947. However, although he was not a Taiwanese national, the Vietnamese authorities believed that he was one, because as a result of that document he was issued with a Foreign Resident's Permit by the Vietnamese authorities, albeit in the name of Khou Boun.

45. Be that as it may, as a result of his application, he was moved to the section of the Whitehead Detention Centre reserved for persons who were applying for voluntary repatriation to Vietnam. A8 claims that when he was interviewed by a Vietnamese official in September 1993, he was told that his application for voluntary repatriation would not be accepted because he was a Taiwanese national. Despite that, he remained in the section of the Whitehead Detention Centre reserved for persons who were applying for voluntary repatriation to Vietnam until 27th January 1994, which is when he was returned to the High Island Detention Centre.

46. The Respondents are not in a position to dispute what A8 claims he was told by the Vietnamese official who interviewed him. That is because a volunteer for repatriation is interviewed without the presence of observers. Indeed, since the Voluntary Repatriation Scheme is administered by the UNHCR, Hong Kong Government officials do not even see the application form for voluntary repatriation which a volunteer for repatriation has to complete. As it is, A8's application form was only supplied to Mr. Choy on 7th January 1995.

47. However, what is important for this purpose is not so much what A8 may have been told by the Vietnamese official who interviewed him, but whether Hong Kong Government officials knew that his application for voluntary repatriation had been rejected. I am satisfied that they did not. I say that for two reasons :

(i) If the Refugee Control Centre had been aware that A8's application for voluntary repatriation had been refused, A8 would have been returned to the High Island Detention Centre much earlier than he was. The evidence before me is that the reason why he was returned to the High Island Detention Centre when he was is because on 26th January 1994, the day before his return, the Refugee Control Centre had received a fax from the UNHCR informing it that A8 had withdrawn from the Voluntary Repatriation Scheme and requesting that he be returned to his camp of origin.

(ii) Having regard to the mechanics of the Voluntary Repatriation Scheme which I have already described, it is hardly surprising that officials in the Refugee Control Centre can remain ignorant as to what a volunteer for repatriation may have been told during his interview. Moreover, it would be by no means unusual for a case to be pending as long as the 5 months between the date when A8 applied for voluntary repatriation and the date when the UNHCR informed the Refugee Control Centre that he had withdrawn his application.

48. On 25th February 1994, 4 weeks after the Refugee Control Centre had been informed that A5 had withdrawn his application for voluntary repatriation, the Vietnamese Refugees Branch of the Immigration Department sent A8's particulars to Vietnam with a view to having him accepted for inclusion in the Orderly Repatriation Programme. No response has yet been received from the Vietnamese authorities, and he remains in detention pending the processing by the Vietnamese authorities of the application for his inclusion in the Orderly Repatriation Programme.

(ii) A9. A9 is Chinese by ethnic origin. He was born in China in 1951. In 1952, his family went to Vietnam, and he lived in Vietnam until he came to Hong Kong. In 1974, he married a woman who was Chinese by ethnic origin, but Vietnamese by nationality. He and his wife came to Hong Kong with their two children in April 1991. An order for his detention was made under section 13D(1) pending a decision to grant or refuse him refugee status. In May 1993, he was refused refugee status, and a further order for his detention was made under section 13D(1) pending his removal from Hong Kong. In January 1994, the Refugee Status Review Board confirmed the decision to refuse A9 refugee status, and made a further order for his detention under section 13D(1) pending his removal from Hong Kong.

49. A9 did not apply for voluntary repatriation to Vietnam. He does not want to return to Vietnam. However, he maintains that even if he was prepared to return to Vietnam, Vietnam would not accept him because he is a Taiwanese national. The evidence that he is a Taiwanese national consists of :

(i) a certificate issued by the Taiwanese embassy in Saigon in August 1968 certifying that he is of Chinese nationality (though whether this certificate amounted to a certificate that he is a citizen of Taiwan, which is what A9 claims the certificate amounts to, is a matter on which there is no evidence before me at all), and

(ii) a passport issued by the Taiwanese embassy in Saigon in October 1974 of the type which did not confer a right on its bearer to enter Taiwan.

I cannot comment further on the first of these two documents, but the second does not establish that A9 is accepted by Taiwan to be one of its nationals. However, it is equally plain that the Vietnamese authorities, rightly or wrongly, regarded him as a Taiwanese national because he was issued with a Foreign Resident's Permit by the Vietnamese authorities, which describes him as having Taiwanese nationality and which he had to renew periodically.

50. Because A9 did not apply for voluntary repatriation to Vietnam, his repatriation to Vietnam could only be effected through the Orderly Repatriation Programme. By the date on which these proceedings were commenced, his particulars had not been submitted to the Vietnamese authorities for processing, even though the Refugee Status Review Board had 11 months earlier confirmed the decision to refuse him refugee status. Mr. Choy told me, and I accept, that that was because the time for submitting his particulars to the Vietnamese authorities had not been reached according to the criteria which determined the order in which particulars were submitted. However, in view of the fact that A9 had, in the evidence filed on his behalf at the beginning of these proceedings, made it clear that he was not going to volunteer for repatriation to Vietnam, it was decided to submit his particulars to the Vietnamese authorities even though that would accord him priority. That was done on 8th December 1994.

(iii) A10. A10 is Chinese by ethnic origin. He was born in China in 1936. In 1945, his family went to Vietnam, and he lived in Vietnam until he came to Hong Kong. In 1968, he married a woman who was Chinese by ethnic origin, but Vietnamese by nationality. He and his wife came to Hong Kong with their three children in August 1989. An order for his detention was made under section 13D(1) pending a decision to grant or refuse him refugee status. In December 1992, he was refused refugee status, and a further order for his detention was made under section 13D(1) pending his removal from Hong Kong. In May 1993, the Refugee Status Review Board confirmed the decision to refuse A10 refugee status, and made a further order for his detention under section 13D(1) pending his removal from Hong Kong.

51. Like A9, A10 did not apply for voluntary repatriation to Vietnam. He does not want to return to Vietnam either. However, he too maintains that even if he was prepared to return to Vietnam, Vietnam would not accept him because he is a Taiwanese national. He claims that his father had a Taiwanese passport and was therefore a Taiwanese national, but there is no evidence before me as to the nature of that passport. The other evidence that he is a Taiwanese national consists of :

(i) a certificate issued by the Taiwanese embassy in Saigon in July 1969 certifying that he is of Chinese nationality, though as I have said in relation to a similar certificate issued to A9 I do not know whether that amounts to a certificate that he is a citizen of Taiwan,

(ii) a certificate issued by the Taiwanese embassy in Saigon also in July 1969 stipulating various provisions of Taiwanese law relating to marriage, though this certificate does not purport to certify that A10 is a Taiwanese national, and

(iii) a passport issued by the Taiwanese embassy in Saigon in July 1970 of the type which did not confer a right on its bearer to enter Taiwan.

Again, I cannot comment further on the first two of these documents, but the third does not establish that A9 is accepted by Taiwan to be one of its nationals. However, it is equally plain that the Vietnamese authorities, rightly or wrongly, regarded him as a Taiwanese national because he was issued with a Foreign Resident's Permit by the Vietnamese authorities, which described him as having Taiwanese nationality and which he had to renew periodically.

52. Because A10 did not apply for voluntary repatriation to Vietnam, his repatriation to Vietnam could only be effected through the Orderly Repatriation Programme. By the date on which these proceedings were commenced, his particulars had not been submitted to the Vietnamese authorities for processing, even though the refusal of his claim for refugee status had been confirmed by the Refugee Status Review Board more than 18 months earlier. His particulars were in fact submitted to the Vietnamese authorities on 8th December 1994 in the same circumstances as those of A9.

(iv) A11. A11 is Chinese by ethnic origin. She was born in Vietnam in 1966, and lived in Vietnam until she came to Hong Kong. In 1986, she married a man who was Chinese by ethnic origin, but Vietnamese by nationality. She and her husband came to Hong Kong with their child and other members of her family in May 1989. An order for her detention was made under section 13D(1) pending a decision to grant or refuse her refugee status. In May 1991, she was refused refugee status, and a further order for her detention was made under section 13D(1) pending her removal from Hong Kong. In October 1991, the Refugee Status Review Board confirmed the decision to refuse A11 refugee status, and made a further order for her detention under section 13D(1) pending her removal from Hong Kong. During her detention in Hong Kong, she has given birth to two more children.

53. Like A9 and A10, A11 did not apply for voluntary repatriation to Vietnam. She, too, does not want to return to Vietnam. However, she also maintains that even if she was prepared to return to Vietnam, Vietnam would not accept her because she is a Taiwanese national. She claims that both her father and her father's parents were Taiwanese nationals, that her father had a Taiwanese passport (although there is no evidence before me as to the nature of that passport), and that the Vietnamese authorities have always regarded her family as Taiwanese. In 1976, for example, her family was requested to register for resettlement to Taiwan, though in the event that never took place, and she claims that in 1986, she, her brother and one of her sisters were forced to register as Taiwanese nationals. I cannot, on the material before me, say that A11 would be accepted by Taiwan to be one of its nationals, but it is plain that the Vietnamese authorities, rightly or wrongly, regarded her as a Taiwanese national because she too was issued with a Foreign Resident's Permit by the Vietnamese authorities, which described her as having Taiwanese nationality and which she had to renew periodically.

54. Because A11 did not apply for voluntary repatriation to Vietnam, her repatriation could only be effected through the Orderly Repatriation Programme. By the date on which these proceedings were issued, her particulars had not been submitted to the Vietnamese authorities for processing, even though the refusal of her claim for refugee status had been confirmed by the Refugee Status Review Board more than 3 years earlier. Her particulars were in fact submitted to the Vietnamese authorities on 8th December 1994 in the same circumstances as those of A9 and A10.

THE LEGALITY OF THE ORDERS FOR DETENTION

55. Mr. Graham argues that all the orders for the detention of the Applicants made under section 13D(1) were unlawful. That is because section 13D(1) does not make detention mandatory. The use of the word "may" in section 13D(1) shows that detention is discretionary. Despite that, all migrants from Vietnam are detained as a matter of policy, and the effect is that in breach of the rules of natural justice a migrant from Vietnam is never accorded an opportunity to make representations as to why he should not be detained, and no consideration is given to a migrant's individual circumstances.

56. Support for that argument is said to be found in the decision of Sears J. in Pham Van Ngo. At p. 507B-D, he said :

"... 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] 1 A.C. 374). I do not consider that Mr. Cheuk [i.e. Mr. Choy's predecessor] exercised any discretion at all. He ... admitted that he always made the order [for detention under section 13D] ... 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 ... I am in no doubt that this decision was unlawful."

If Sears J. was saying in this passage that the exercise of a discretionary power is always unlawful if it involves following a policy which has been laid down in advance, I must disagree with him. A person in whom a discretionary power is vested may, in the exercise of that discretion, adopt a policy as to how his discretion is to be exercised. As a general rule, of course, it will be necessary for him to decide whether the policy should be applied to the individual cases which call for the exercise of his discretion. However, it does not follow that the automatic application of that policy - without considering the individual circumstances of persons affected by its application - will always be unlawful. "There may ... be room for some relaxation of the requirement of consideration of every application on its merits, at any rate in cases involving a national policy where applications are multitudinous": Wade and Forsyth, op. cit., p. 364, echoing Lord Dilhorne's comment in British Oxygen Trade Co. Ltd. v. Board of Trade [1971] A.C. 610 at p. 631B-C that it "seems somewhat pointless and a waste of time that the Board should have to consider applications which are bound as a result of its policy decision to fail". It goes without saying that if the policy is such that the circumstances of individual cases need not be considered, the need to afford persons affected by the application of the policy the opportunity to make representations on the application of the policy to them does not arise, and there is no question of that rule of natural justice applying to the decision-making process.

57. The policy that all migrants from Vietnam be detained pending screening, and thereafter pending their repatriation to Vietnam if they are not accorded refugee status, was explained by Mr. Asprey during the debate to which I have already referred. That evidence (though not admissible to construe section 13D because there is nothing ambiguous about it) is admissible as evidence of the existence and extent of the Government's policy of detention which the Director of Immigration, and subsequently the Refugee Status Review Board, applied. Mr. Asprey said:

"Our objective is resettlement or repatriation as appropriate in accordance with internationally agreed and accepted arrangements. This objective would be frustrated if persons who have not established a claim to refugees' status, or who have been found not to be refugees, were to be released to live and work in the community. We would in those circumstances have lost control de facto over immigration into Hong Kong from Vietnam": Hong Kong Legislative Council, 24th April 1991, Reports of Debates, p. 1732.

Mr. Bresnihan, in his affidavit, added that "[i]n the view of [the] Administration any other policy would be unacceptable to the people of Hong Kong and if attempted would be a threat to public order and security".

58. It is not for me to enter the political arena and comment on the need for such a policy. All I need do is to record that there is in this case no challenge to the policy on the basis on its lack of rationality, or that it was adopted without taking all relevant factors into account, or that irrelevant factors were taken into account when it was adopted. The argument for the Applicants focuses on the denial of an opportunity to individual migrants to argue that the policy should not be applied to them.

59. I have no doubt that the automatic making of orders for detention under section 13D(1), without consideration of the circumstances of individual migrants from Vietnam, is lawful. There is no point in immigration officers considering their individual circumstances when the need to monitor their whereabouts and activities in Hong Kong can properly be regarded by the Government as dictating that they be confined to centres reserved for them. Since the reasons for the policy make it applicable to all migrants from Vietnam who arrive without travel documents whatever their individual circumstances, to profess a willingness to take account of individual circumstances would serve only to create false expectations. That is especially so in view of the difficulty of devising acceptable criteria for determining which migrants should be detained, and which should be freed into the community in the face of such a massive influx of migrants from one country. It is necessary, of course, for the immigration officer who makes the initial order for detention under the authority of the Director to be satisfied that the migrant arriving in Hong Kong from Vietnam comes within the terms of section 13D(1). But once he has satisfied himself of that, then automatic detention under section 13D(1) is lawful - at any rate for those who arrive in Hong Kong wishing to remain here. After all, section 13D(1) only applies to those migrants from Hong Kong who arrive without valid travel documents, and it is not as if the Government's closed camp policy has been kept a secret. The message since 1982 has consistently been one of detention pending screening, repatriation or resettlement. Migrants from Vietnam could have had no realistic expectation of anything else.

60. In reaching this conclusion, I do not believe that I am travelling in unchartered territory. Jones J. has been here before me, though in reaching the same conclusion as him, I have walked along a different path. In Tran Quoc Cuong and Khuc The Loc, he said at pp. 331I-332B :

"I am quite satisfied that the Director is not required to exercise a discretion under section 13D(1) whether or not to detain Vietnamese who arrive in Hong Kong from Vietnam. Having regard to the policy expressed by Government, the legislature clearly intended that all Vietnamese boat people should be detained immediately upon their arrival. From a practical point of view, the authorities would be faced with an almost impossible task if they had to interview each person upon arrival as to his or her individual circumstances before a decision to detain was made. For a detention order to be made, it is only necessary to establish that a person is a resident or former resident of Vietnam without a valid travel permit."

For myself, I do not think that section 13D(1) should be construed by reference to Governmental policy, nor do I think that the Director is not required to exercise a discretion. I prefer to put my conclusion on the basis that

(i) section 13D(1) confers a discretion on the Director which the Director is required to exercise, but

(ii) there is nothing which prohibits the exercise of that discretion by reference to Governmental policy, and

(iii) a consideration of the individual circumstances is unnecessary, not because of its impracticability, but because it would serve no useful purpose.

For these reasons, I am entirely satisfied that all the orders for the detention of the Applicants under section 13D(1) were lawful.

THE ABSENCE OF ORDERS UNDER SECTION 13E(1)

61. If the four remaining Applicants are to be repatriated to Vietnam, their repatriation will, as I have said, be under the Orderly Repatriation Programme. The mechanism by which detainees are repatriated to Vietnam under the Orderly Repatriation Programme is provided for by section 24. However, the effect of section 13E(2) is that a detainee can only be repatriated to Vietnam under section 24 if an order for his removal from Hong Kong has been made under section 13E(1). No order under section 13E(1) had been made in relation to any of the four remaining Applicants. Mr. Graham argues that since such an order is a pre-condition for their removal from Hong Kong, their detention pending that removal cannot be lawful until such an order is made.

62. I disagree. There is nothing in Part IIIA of the Ordinance which requires an order for removal under section 13E(1) to be made before the making of orders for detention under section 13D(1) pending the detainee's removal from Hong Kong. Indeed, the language of section 13E(1) suggests the contrary, namely, that an order for detention under section 13D(1) is a pre-condition for an order for removal under section 13E(1). An order for removal under section 13E(1) is a pre-condition for an order for detention pending that removal under section 32(1) (see Attorney-General v. Pham Si Dung (No. 1) (MP 2626/93), but not for an order under section 13D(1). Accordingly, orders for detention under section 13D(1) pending a detainee's removal from Hong Kong are not unlawful if there is not at the time an order for removal under section 13E(1) in force.

THE LENGTH OF THE APPLICANTS' DETENTION

63. Mr. Graham argues that even if the orders for the detention of Applicants under section 13D(1) were lawful, the length of their detention since then is such that their detention has become unlawful. I doubt whether this argument could have been maintained in the past. Although the courts have for centuries jealously maintained their right to determine whether the facts of a particular case justify the initial detention of a detainee, the willingness of the courts to monitor the progress of a valid order for detention is a relatively recent judicial development. It has found its most articulate expression in the decision of Woolf J. (as he then was) in R. v. The Governor of Durham Prison ex p. Hardial Singh [1984] 1 WLR 704.

64. That case concerned an Indian national who had been given indefinite leave to remain in the United Kingdom. However, he was twice convicted of offences of burglary, and the Secretary of State eventually made a deportation order against him. That entitled the Secretary of State to authorise his detention pending his removal from the United Kingdom. However, the Applicant's removal from the United Kingdom was delayed as a result of his losing his passport, and the failure of the Indian High Commission to issue him with alternative travel documents. By the date of the hearing of the Applicant's application for his release from detention, almost five months had elapsed since the deportation order had been made. Woolf J. said at p. 706C-F :

"Although the power which is given to the Secretary of State ... to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations ... [A]s the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention. In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time."

65. I believe that two of the propositions contained in that passage are wholly uncontroversial, and I do not think that anyone would disagree with them. First, a power of detention which is not expressed to be limited in duration is nevertheless to be regarded as impliedly limited to a period which is reasonably necessary to achieve the purpose for which the power was granted, though that period may differ from case to case depending on the circumstances of each case. That was also the view of Godfrey J. (as he then was) in Liew Kar-seng v. The Governor-in-Council [1989] 1 HKLR 607 at p. 609H. Secondly, to the extent that the person in whom the power of detention is vested can control the period which it would take to achieve the purpose for which the power was granted, that person should take the steps necessary to achieve it with all reasonable expedition. From his actual findings, it is plain that Woolf J. believed that it was for the court, and not just for the person in whom the power of detention was vested, to determine (a) what period was reasonably necessary to achieve the purpose which the power was granted, and (b) whether the steps necessary to achieve it with all reasonable expedition had been taken. With all this, I agree.

66. A third proposition which Woolf J. enunciated is more controversial. I repeat what he said :

"... if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention."

Mr. Marshall argues that this sentence lays down no general principle of law. All that Woolf J. was doing was indicating how he would exercise his discretion if the power of detention was vested in him. He was doing no more than offering guidance from the Bench to the Secretary of State. I cannot accept this analysis of what Woolf J. said. That Woolf J. was expressing in this sentence a further limitation on the power of detention is, I think, plain from the sentence which introduces the subject ("I am quite satisfied that [the power of detention] is subject to limitations"), and from the words immediately before the crucial sentence ("What is more"). The context of the sentence is wholly inconsistent with Woolf J. merely giving advice to the Secretary of State. I have no doubt that in that sentence Woolf J. was saying that the power of detention is to be limited to those cases in which the purpose for which the power was granted can be achieved within a reasonable time.

67. I agree with Woolf J., with the proviso that whether the purpose can be achieved within a reasonable time can depend on the detainee's circumstances. For example, it may be, because of the absence of arrangements with a foreign country, that the period which is reasonably necessary to effect the removal of the detainee to his country of origin is considerable. Suppose, though, that the detainee has deep-rooted links in the country which seeks to return him, and that there is little danger of him not surrendering to custody, or not being found, when his removal is to be effected. In such circumstances, detention for the period which it would reasonably take to effect his removal could well be unreasonable. Having said that, though, I do not suppose that circumstances will often arise when detention for the period which it would reasonably take to achieve the purpose for which the power was granted could nevertheless be regarded as unreasonable.

68. I have two other comments to make on this sentence in Woolf J.'s judgment :

(i) According to Woolf J., whether the purpose for which the power of detention was granted can be achieved within a reasonable time is for the person in whom the power is vested, and not the court, to decide. With respect of Woolf J., I do not understand why he drew a distinction on this issue between this implied limitation on the power to detain and the other two implied limitations to which I have referred. It is, in my view, for the court, and not exclusively for the person in whom the power of detention is vested, to determine whether the purpose could be achieved within a reasonable period of time.

(ii) According to Woolf J., the decision as to whether the purpose of the detention can be achieved within a reasonable time has to be made when the power is first exercised. I go further. In my view, the detention will become unlawful (even if it was lawful at the time the detention was ordered) if, with the passage of time, the purpose for which the power was granted becomes incapable of being achieved within a reasonable time. I regard Godfrey J. in Liew Kar-seng as expressing precisely this view. At page 609F-I, he said :

"... if the authorities say 'We are sorry; we cannot remove you just at the moment but we are doing our best to do so' ... the court cannot and should not intervene unless it considers that there is no real prospect of the authorities ever succeeding within what, in all the circumstances of the case, the court considers a reasonable time, in deporting the detainee. It will occasionally happen that the best that the authorities can do is simply not good enough. If, after what, in all the circumstances of the case is a reasonable time, the authorities have tried their best and failed, the matter cannot be allowed to rest there; for otherwise the detainee could remain in detention indefinitely, even for the whole of the rest of his life ... [O]nce the authorities have had what, in all the circumstances of the case, is a reasonable time to resolve the matter, and yet (even though it be through no fault of theirs) the matter remains unresolved, then the detainee must be entitled to be released."

The first sentence in this passage does not lie easily with what Godfrey J. said a little earlier in his judgment, namely, that if the authorities do not know when they will be able to remove the detainee, they cease to hold him pending his removal. But I take Godfrey J.'s predominant view to be the passage which I have quoted.

69. Is delay caused by factors beyond the control of the person in whom the power of detention is vested a relevant factor in deciding whether removal can be achieved within a reasonable time ? Godfrey J. obviously thought not: note the phrase "even though it be through no fault of theirs". The Court of Appeal in England, however, recently took a different view. In Cartwright v. The Secretary of State for the Home Department (unreported, 15th August 1994), the Court was considering the legality of the detention pending the removal to Jamaica of a woman who had obtained a British passport in the name of someone else and had pretended to be a British citizen. Her removal to Jamaica had been delayed by what the court regarded as factors outside the control of the Secretary of State, namely, her own action in refusing to abandon her false identity and the handling of her case by Interpol. The Court held that in those circumstances her detention was not unlawful. In other words, in determining whether removal can be achieved in a reasonable time, a relevant consideration is whether the delay was caused by factors beyond the control of the person in whom the power of detention was vested. I prefer that view to that of Godfrey J.

70. I turn to the application of these principles to the facts of the present case. The periods for which each of the four Applicants were detained pending a decision to grant or refuse them refugee status were extremely long : 22 months in the case of A8, 25 months in the case of A9, 14 months in the case of A10, and 24 months in the case of A11. However, these periods have to be seen in the context of the enormous pressures on the Immigration Department to screen the huge number of migrants from Vietnam who came to Hong Kong in 1988 and 1989. I cannot ignore the fact that the screening process involved interviewing the detainee, sometimes over many days, to obtain a full picture of his life in Vietnam, and involved an assessment and evaluation of the information provided. I have given anxious consideration to the length of the Applicants' detention pending their screening, but in the light of the manpower and financial resources allocated to that task, and taking these logistical constraints into account, as section 13D(1A)(a) requires me to do, I am satisfied that the time for which the Applicants were detained was reasonably necessary to enable the Immigration Department to carry out an adequate investigation into their claims for refugee status. I bear in mind that by definition the Applicants, like all other migrants from Vietnam, did not have deep-rooted links in Hong Kong, and that the possibility could not be ignored of them not making themselves available, and not being found, when the investigations into their claims for refugee status were being made. I do not believe that, given the constraints, the screening process could reasonably have been carried out with greater expedition that it was, nor do I believe, given the constraints, that detention during the screening process was for an unreasonable time.

71. I turn to the Applicants' detention since their claims for refugee status were refused. The periods for which each of them has been detained pending their removal from Hong Kong have also been extremely long: 39 months in the case of A8, 20 months in the case of A9, 25 months in the case of A10, and 44 months in the case of A11. During a part of these times, their cases were being reviewed by the Refugee Status Review Board, but the fact remains that these are the periods during which they have been detained since orders were first made for their detention under section 13D(1) pending their removal from Hong Kong. When coupled with the length of their detention pending screening, the time which these Applicants have been in detention is truly shocking. They are, at first blush, an affront to the standards of the civilized society which Hong Kong aspires to be.

72. But the periods of detention pending the Applicants' removal from Hong Kong should also be seen in their proper context. A9, A10 and A11 never volunteered to be repatriated to Vietnam, and in relation to A8, I have found that the Vietnamese Refugees Branch was entitled to believe that his application for voluntary repatriation to Vietnam had been withdrawn. In these circumstances, they could only be repatriated to Vietnam under the Orderly Repatriation Programme. For the reasons I gave earlier when describing the way in which that programme works, the speed with which detainees can be repatriated to Vietnam under it is, to all intents and purposes, out of Hong Kong's hands. Again, I have given the most anxious consideration to the length of the Applicants' detention pending their removal from Hong Kong, but taking these logistical constraints into account, as section 13D(1A)(b) requires me to do, I am satisfied that the time for which the Applicants have been detained has been reasonably necessary to enable them to be considered by the Vietnamese authorities for inclusion in the Orderly Repatriation Programme. Not everyone can be considered at the same time. Not everyone can have their particulars submitted to the Vietnamese authorities at the same time. Mr. Graham did not press Mr. Choy to identity the criteria which have been adopted. Mr. Graham does not, therefore, ask me to assume that unfair criteria have been adopted or that the criteria which have been adopted have not been applied fairly or consistently in relation to the Applicants. I do not believe that, given the constraints, the attempts to repatriate the Applicants could reasonably have been carried out with greater expedition that they have been, nor do I believe, given the constraints, that detention while those attempts have been made has been for an unreasonable time.

THE WILLINGNESS OF VIETNAM TO ACCEPT THE APPLICANTS' REPATRIATION

73. I turn finally to whether Vietnam is willing to accept the repatriation of these Applicants. If Vietnam is not prepared to accept them (and it is accepted that there is no question of any other country accepting them for the moment), there is no prospect of them being removed from Hong Kong at all in the foreseeable future. It is common ground that, in those circumstances, their detention under 13D(1) pending their removal from Hong Kong would be unlawful because the purpose for which the orders for detention were made cannot in their cases be achieved.

74. The evidence that Vietnam is not prepared to accept detainees in Hong Kong whom it regards as non-Vietnamese nationals is compelling. It comes from a number of sources :

(i) That is what the detainees themselves say. A8 claims that the Vietnamese official who interviewed him in September 1993 in connection with his application for voluntary repatriation told him that the fact that he was a Taiwanese national meant that his application could not be accepted. The evidence of three other detainees - Lau Vong Sang, Cong Siu Lay and Lieu Tu - is to the same effect. Indeed, Cong Siu Lay and Lieu Tu were not accepted for repatriation on that ground despite the fact that their wives had Vietnamese nationality.

(ii) There is evidence from many detainees that officials of the UNHCR advise detainees not to disclose their Taiwanese nationality when they apply for voluntary repatriation. I do not comment on whether that advice is sound or not, but what it shows is that the officials who give that advice believe that a detainee's chance of having his application for voluntary repatriation accepted is less if the Vietnamese authorities regard him as having Taiwanese nationality. If that is what officials of the UNHCR have been told, it is evidence (admittedly hearsay, and second-hand hearsay at that) of the Vietnamese authorities' attitude to those whom they regard as non-Vietnamese nationals. The fact that the evidence is second-hand hearsay means that I cannot exercise my discretion under Ord. 38 r. 29(1) of the Rules of the Supreme Court to admit that evidence. Having read it, therefore, I must attach no weight to it.

(iii) Mr. Brook has spoken to the Vice-Consul of the Vietnamese Consulate in Hong Kong twice in the last few months on the issue. The Vice-Consul told him that Vietnam would not accept the repatriation of people whom it does not regard as Vietnamese nationals, even if they are married, or otherwise related, to Vietnamese nationals. I have to assume that even if the Vice-Consul does not formally speak for the Government of Vietnam, he is likely to be aware of the Vietnamese authorities' attitude to those whom they regard as non-Vietnamese nationals. This evidence is admittedly hearsay as well, but I regard it as first-hand hearsay, and because these are habeas corpus proceedings involving people's liberty, I exercise my discretion under Ord. 38 r. 29(1) to admit the evidence, despite the fact that the Vice- Consul has not been cross-examined. I attach significant weight to it. Indeed, on a related subject, I should add that the Vice-Consul told Mr. Brook that Foreign Resident's Permits are issued in Vietnam to those persons resident in Vietnam who are regarded as not having Vietnamese nationality.

75. The Respondents point to examples of detainees who come within the category of persons who are regarded by the Vietnamese authorities as not having Vietnamese nationality, but who have nevertheless been accepted by the Vietnamese authorities for repatriation. In a check of fifty random files of persons who were Chinese by ethnic origin, and who have been accepted for repatriation to Vietnam, four were found to have Foreign Resident's Permits describing them as having Taiwanese nationality, and one was found to have a Taiwanese passport as well, though I was not told what type of passport that was. Only one of those files (the one with the Taiwanese passport) related to someone who was married, and the file recorded that his wife had Vietnamese nationality. Since, therefore, there are examples of the Vietnamese authorities accepting for repatriation persons whom they regard as having Taiwanese nationality, the Respondents contend that any policy to refuse the acceptance of persons they regard as non-Vietnamese nationals is not consistently applied. Whether these four remaining Applicants will be accepted is something that will not be known until it is put to the test. That was what the submission of their particulars for the purpose of their inclusion in the Orderly Repatriation Programme was intended to do.

76. I am not persuaded by this argument. Of the four examples found, three related to detainees who were repatriated under the Orderly Repatriation Programme. The particulars which were submitted to the Vietnamese authorities did not identify their nationality, therefore, and it could easily be the case that the information given was not checked against the detainee's local household registration or his residential file as thoroughly as it should have been, or that the fact that they had Foreign Resident's Permits could not be gleaned from them. As for the one example found of a detainee who had been repatriated under the Voluntary Repatriation Scheme, there is, of course, no evidence as to what he inserted in the box marked "nationality" on his application form for voluntary repatriation. For all I know, he could have followed the advice which the officers of the UNHCR were giving about concealing his nationality.

77. I am quite satisfied that Vietnam is not prepared to accept the repatriation of detainees whom it regards as non-Vietnamese nationals. I do not believe that Vietnam's policy on the repatriation of such detainees has not been raised in the course of negotiations between officials of the Vietnamese and Hong Kong Governments. If Vietnamese officials in such negotiations had denied the existence of a policy not to accept their repatriation, or if they had said that there were circumstances in which their repatriation might be accepted, I would, I assume, have been told that. I appreciate that diplomatic negotiations with a foreign power are sensitive and of the utmost confidentiality, but Mr. Marshall never said to me that there was something which I could not be told which might have had a significant impact on any issue in the case. On the balance of probabilities, I find that it is much more likely than not that when the particulars of A9, A10 and A11 have been scrutinised by the Vietnamese authorities, the Vietnamese authorities will regard them as non-Vietnamese nationals and will refuse to accept them for repatriation. In those circumstances, I find that there is no reasonable prospect of them being removed from Hong Kong at all in the foreseeable future. I therefore declare that their continued detention under section 13D(1) pending their removal from Hong Kong is unlawful because the purpose for which the orders for their detention were made cannot be achieved. I order their immediate release from detention. That does not mean that they can never be removed from Hong Kong. They can - at any rate when another country has agreed to accept them. Until then, though, they cannot be kept in detention.

78. However, different considerations apply to A8. It is true that he is regarded by the Vietnamese authorities as a non-Vietnamese national in view of the Foreign Resident's Permit he has in the name of Khou Boun, but he was issued with it only because of the Taiwanese passport which his father had acquired for him to enable him to avoid conscription. In the last few weeks, the Governments of Vietnam and Hong Kong have agreed on a procedure as to what is to happen when the giving of false information by a detainee prevents the Vietnamese authorities from determining whether to accept the detainee for repatriation. The Vietnamese authorities will bring the problem to the attention of the UNHCR, and the UNHCR and the officials in the Vietnamese Refugees Branch will then provide the Vietnamese authorities with such information as is in their records about the detainee to enable the Vietnamese authorities to continue their investigation.

79. No doubt, that procedure can be applied to those detainees who the Vietnamese authorities refuse to accept for repatriation on nationality grounds, but who officials in the Vietnamese Refugees Branch believe have

deceived the Vietnamese authorities into regarding them as non-Vietnamese nationals.

80. I am quite sure that when, pursuant to this procedure, the Vietnamese authorities read the notes of the immigration officer who interviewed A8 for the purpose of determining whether he should be accorded refugee status, the Vietnamese authorities will regard him as a Vietnamese national. I find, on the balance of probabilities, that it is much more likely than not that the Vietnamese authorities will, in those circumstances, accept him for repatriation. I therefore find that there is every prospect of him being removed from Hong Kong in the near future. Accordingly, I declare that his continued detention under section 13D(1) pending his removal from Hong Kong is lawful, and I refuse to order his release from detention.

CONCLUSION

81. That disposes of the applications before me, though in conclusion there are three things I should like to say :

(i) I have had occasion in the course of this judgment to call into question some of the observations made by Sears J. in Pham Van Ngo. I know that Pham Van Ngo has been regarded as an important case in Hong Kong, and I do not want it to be thought that my reservations about some of Sears J.'s remarks mean that I disagree with the conclusion that he reached. I do not. I entirely agree with Sears J. that section 13D(1) in its then form was a wholly inappropriate power of detention to exercise in relation to migrants who never intended to remain in Hong Kong.

(ii) I know that this case has been regarded by some as an important one, and I accept that my judgment in it is likely to attract some publicity. In the interest, though, of the many migrants from Vietnam who are still in detention, it would not be right for my judgment to be reported in such a way that gives them false expectations. It is true that I have found that the continued detention of three of the Applicants is unlawful, and I have described the length of their detention as shocking. But on the issues of principle which this case has raised, I have not found either the fact of their detention or its length unlawful. I have only found their detention to be unlawful because I think it probable that the Vietnamese authorities will not accept them for repatriation.

(iii) I wish to express my personal thanks to counsel and solicitors who have selflessly undertaken the representation of the Applicants on a pro bono basis. This case lasted longer than was anticipated, and that has made their dedication to their duties even more impressive.