Attorney General v. Pham Si Dung

1993, No. MP 3111

Head Note

Immigration Ordinance - Criminal Law - whether Court has power to detain Vietnamese Migrant who had given up his right to be screened to determine his claim for refugee status and applied to return voluntarily to Vietnam under S.32(4)(b) of the Immigration Ordinance for the purpose of giving evidence as a defence witness at a criminal trial.

1993, No. MP 3111

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. By this Originating Motion, the Attorney General applied to this Court under S.32(4)(b) of the Immigration Ordinance for an order that the Respondent Pham Si Dung be detained for a further period of 21 days for the purpose of giving evidence for one of the defendants Pham Hoa (The Defendant) in High Court Criminal Case No. 201 of 1992.

2. The Defendant together with 12 others were jointly charged with the offences of murder and riot which offences arose out of a tragic incident on 3rd February 1992 at the Sek Kong Detention Centre, a detention centre specified in the Schedule of the Immigration (Vietnamese Migrants) (Detention Centres) Rules.

3. During the night of the 3rd and the early morning of the 4th of February 1992, there was a serious commotion at the Sek Kong Detention Centre due to the conflict between rival groups of detainees as a result of which a number of men, women and children perished in the fire and the Defendant was subsequently indicted for murder and riot together with 12 others. The Defendant's case was that at the material time, he was sleeping in his bed space and the Respondent was there with him.

4. The Respondent was interviewed by the Defendant's legal representative on 23rd September 1992 and he gave a statement which supported the Defendant's contention that he was not at the scene of the crime at the material time.

5. On 25th September 1992 the Defendant's legal representative served upon the Crown an alibi notice under S.65D of the Criminal Procedure Ordinance.

6. The murder and riot trial against the Defendant and 12 others commenced on 17th December 1992 before Mr. Justice Gall and a jury and is currently in progress. The case involved 13 Defendants and many victims and the Crown expected to call no less than 120 witnesses. These appear to be further difficulties amongst others arising out of the unwillingness on the part of some of the prosecution witnesses to give evidence. The upshot was that the Respondent was not expected to be able to give his alibi evidence for the Defendant until some time around Easter of 1994.

7. In February 1993, the Respondent gave up his right to be screened to determine his claim for refugee status and applied to return voluntarily to Vietnam. But for the murder and riot trial in which the Respondent was required as a defence witness, he would have been sent back to Vietnam shortly thereafter. Since February 1993, the Respondent have been detained against his will in Hong Kong.

8. On 25th June 1993, a Mr. Choy Ping Tai, an assistant Director of Immigration in exercise of the power under S.13E of the Immigration Ordinance, ordered the removal of the Respondent who had been detained under Section 13D of the Ordinance, which removal would be effected after the conclusion of his testimony in the murder and riot trial. Mr. Choy further authorised his detention until he was so removed pursuant to section 32(1)(a) of the Ordinance.

9. On 9th August 1993 Mr. A.P. Asprey, the Secretary for Security made a detention order against the Respondent in the following terms :-

Immigration Ordinance

Chapter 115

Authorisation for Detention under Section 32(4)(a)

Whereas Pham Si Dung is a person who is to be removed from Hong Kong under Section 13E of the Immigration Ordinance and upon consideration of the matters set and in the letter dated 6 August 1993 from the Ada Y.M. Chan & Company, I hereby exercise the powers vested in me by section 32(4)(a) of the Immigration Ordinance Cap. 115 and authorise the detention of the said

Pham Si Dung

for the purpose of section 32(4)(a) for a period of not more than 28 days commencing in the date of this authorisation.

Dated this 9th day of August 1993.

SignedA.P. Asprey Secretary for Security"

10. The 28 days period expires on 6th September 1993.

11. On 26th August 1993, the Attorney General's Chambers received a request, in the form of an affirmation by Ada Y.C. Chan, the solicitor acting for the Defendant that an order be made under Section 32(4)(b) of the Immigration Ordinance to detain the Respondent for a further period of 21 days so that he may give evidence for the Defendant.

12. The Attorney General, having given the request detailed and careful consideration, and having had regard to all relevant matters, including the fact that a successful application would lead to the continuing detention of the Respondent, reached the conclusion that it was an appropriate case in which to make an application for detention and hence the present application under S.32(4)(b) of the Immigration Ordinance to detain the Respondent for a further period of 21 days commencing on 7th of September 1993.

13. It appeared that there had been a similar earlier application before Kaplan J. which application was heard on 22nd and 23rd July 1993 and the Judgment was delivered on 5th August 1993.

14. At pages 8 - 11 of his judgment Kaplan J. set out in chronological order the actual orders made in connection with the detention of the Respondent.

15. It appears that there had been orders relating to the detention of the Respondent made prior to the order of Mr. Choy Ping Tai dated 25th June 1993.

16. On 26th July 1991, an order was made pursuant to S.13D(1) detaining the Respondent pending a decision to grant or refuse him permission to remain in Hong Kong as a refugee.

17. On 25th February 1993 the Secretary for Security made an order, purportedly under S.32(4)(a) of the Immigration Ordinance detaining the Respondent for a period of 28 days which period expired on 25th March 1993.

18. On 23rd April 1993, 13th May 1993, 2nd June 1993, 23rd June 1993 and 12th July 1993 Gall J. made identical orders purportedly under S.32(4) of the Immigration Ordinance detaining the Respondent for further periods of 21 days for the purpose of giving evidence at the trial in question.

19. Kaplan J. accepted the submission on behalf of the Respondent that the making of an order under S.13E of the Immigration Ordinance is a condition precedent to the exercise of the power of the Secretary for Security under S.32(4)(a) to detain him for up to 28 days. As the only order made under S. 13E was made on 25th June 1993, some 4 months after the order made by the Secretary for Security, the order by the Secretary for Security dated 25th February 1993 was a nullity and there could be no jurisdiction for the Court to make an order under S.32(4)(b) at the request of the Attorney General for further periods of detention of up to 21 days.

20. On the jurisdictional point, Kaplan J. refused the application by the Attorney General and declined to make any ruling as to the substantial arguments raised by both sides. Kaplan J. took the view that the Director of Immigration and the Secretary for Security may wish to regularize the position and make a renewed application to another judge for extension of 21 days and the judge will then consider the submission and rule on them in the light of the facts then existing.

21. It is clear that the authorisation for detention under S.32(4)(a) by the Secretary for Security dated 9th of August 1993 was an attempt on the part of the Secretary for Security to regularize the position to support the present application by the Attorney General.

22. Mr. Bradley in his submission emphasized that the Attorney General as a Minister of Justice has the duty to represent the interest of the public which interest requires that a Defendant charged with any offence would be given a fair trial.

23. To ensure that the Defendant would be given a fair trial, it is important that material witness favourable to the Defendant should be made available to give evidence for the Defendant.

24. To support his argument, Mr. Bradley on behalf of the Attorney General referred to Article 11 of the Hong Kong Bill of Rights which provides:-

(1) Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

(2) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees in fully equality -

(e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same condition as witness against him;

25. It was argued that the present application by the Attorney General was made as an objective attempt to ensure the availability of the Respondent to give alibi evidence for the Defendant so that Article ll of the Hong Kong Bill of Rights was observed. So that the Defendant would be given a fair trial.

26. Mr. Bradley further submitted that although there are provisions in the Criminal Procedure Ordinance to ensure the attendance of a witness, the Court should nevertheless consider primarily the provisions under the Immigration Ordinance as the situation relating to the Respondent was an unique one and the provisions of the Immigration Ordinance were enacted to deal with such unique situation and he argued that the plain wordings of Section 32(4)(b) of the Immigration Ordinance clearly entitles the Attorney General to make an application and for the Court to order the detention of the Respondent for further periods, not exceeding 21 days upon any one application for the purpose of giving evidence at the trial of any offence, whether it was giving evidence for the prosecution or for the defence.

27. To urge the Court to exercise its discretion in favour of the Attorney General Mr. Bradley referred to the affirmation of Mr. Peter John Power, one of the prosecuting counsel prosecuting the Defendant and 12 others before Gall J. and a jury, and pointed out the difficulties and problems associated with the various alternatives of receiving the evidence of the Respondent without the necessity of further detaining him for considerable period of time and it appeared none of the alternatives was viable.

28. Mr. Bradley also pointed out that in the light of the current set-up relating to the detention and/or housing for migrants from Vietnam, there was no other feasible way of handling the Respondent other than to continue detaining him in accordance with the provision of the Immigration Ordinance.

29. At the outset, I must say I have considerable sympathy for the rather unenviable situation of the Attorney General. A witness for a Defendant in a murder trial is in the custody of the Crown. He is someone who had entered Hong Kong without permission and had volunteered to return to Vietnam and in the normal course of event would be repatriated to Vietnam within a short period of time in accordance with established government policy.

30. Unless valid order for his further detention is obtained, there is no assurance that the government policy would not be adhered to in which event the Crown could be accused of being part of a conscious effort to deprive of or handicap the Defendant the chance to call a favourable and material witness and thus deprive him of a fair trial. The Crown may have to resist an application to stay the proceeding. I accept for the purpose of the present proceeding that there is no practical and viable alternative to receive the Respondent's evident properly.

31. Indeed as I had indicated in the course of counsel's submission that I have the greatest doubt whether our present system of the administration of justice is adequate to deal with the situation as revealed in the present proceedings, a situation which is unprecedented and probably beyond the contemplation of our system of justice.

32. I also accept Mr. Bradley's submission that it would be difficult if not impossible to devise a mean to allow the Respondent to remain in Hong Kong until his turn to give evidence without having to detain him.

33. But these reasons are not sufficient reasons to deprive a person of his liberty, be it the liberty of someone who had entered Hong Kong without permission. After all Article 5 of the Hong Kong Bill of Rights guarantees that everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

34. My primary task is therefore to decide whether there is ground established by law to order the detention of the Respondent and I hasten to add that the burden is on the Attorney General to satisfy me beyond a reasonable doubt that S.32(4)(b) of the Immigration Ordinance provides a valid ground for such purpose.

35. One of Mr. Dykes' thorough and able submission was that the power given to the Attorney General to seek an order under S.32(4)(b) of the Immigration Ordinance is exercisable only where the detainee is to be called as a prosecution witness. It has no application where the detainee is to be called as a witness for the defence.

36. I find considerable force in such argument.

37. S.32(4)(b) of the Immigration Ordinance only entitles the Attorney General to make an application to detain a person against whom a removal order is in force for the purpose of giving evidence at the trial of any offence, it gives no right to a Defendant in the trial to make any such application. Indeed, the section does not even provide for the attendance of a Defendant at the hearing of an application made by the Attorney General.

38. Mr. Walters who represented the Defendant in the present proceeding requested to be heard which request was objected to by the Dykes except that Mr. Dykes was prepared to allow Mr. Walters the right to relate to the Court factual matters pertaining to the trial currently before Gall J. and a jury.

39. The Court came to the conclusion that the person mostly affected by the decision of the Court would be the Defendant and decided to grant Mr. Walters the right to be heard generally.

40. In the earlier application before Kaplan J., Mr. Walters was heard as amicas curciae.

41. Although Mr. Walters was allowed to be heard his status was not entirely clear.

42. Such matters perhaps were significant in determining the intention of the legislation in enacting S.32(4) of the Immigration Ordinance.

43. If the intention of the legislation was to enable defence witness to be detained, would it have failed to accord the right to a Defendant to make such an application? Would it have failed to at least make provision to enable a Defendant to be present and to be heard.

44. The answer seems to be clear bearing in mind S.19 of the Interpretation and General Clauses Ordinance that an Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true content, meaning and spirit.

45. The fact that only the Attorney General is entitled to make an application under S.32(4)(b) of the Immigration Ordinance and that the relevant section has not specified whether the detainee is to be detained for the purpose of giving evidence at the trial of any offence for the prosecution or for the defence does give rise to ambiguity and/or obscurity. It is also absurd that if a detainee is to be detained for the purpose of giving evidence as a defence witness that the defence is not entitled to make such an application and no provision is made for the defence to be present.

46. In the circumstance I am of the view that the requirement for the relaxation of the rule which excludes reference to Parliamentary material as an aid to statutory construction as laid down in Pepper v. Hart [1992] 3 W.L.R. 1032 had been met and that the Court could and should have regard to the Hansard in determining the intention of the legislation.

47. The then Secretary for Security is moving the second reading of relevant bill to amend the Immigration Ordinance had the following to say :-

"Under the existing law, illegal immigrants can only properly be detained for such minimum time as is necessary to effect their removal to China or elsewhere. This usually means that it is very difficult to secure sufficient evidence to prosecute those who may have assisted in their entry to Hong Kong. And I should add there is increasing information that a number of people are engaged in aiding and abetting illegal immigration. So the amendment proposed in Clause 3 of the Bill will allow illegal immigrants to be detained for sufficient time to give evidence in the prosecution of aiders and abettors in appropriate cases."

48. It is therefore clear that the intention of the legislation in enacting S.32(4)(b) of the Immigration Ordinance was to enable the Attorney General to apply to the Court of the further detention of a person subject to a removal order so that he could give evidence as a prosecution witness only.

49. There are in my view good reasons for limiting the witnesses to be detained under S.32(4)(b) to prosecution witnesses as the Attorney General will have control as to how long such witnesses need to be detained whereas when it comes to defence witnesses, as demonstrated in the present case, the period of detention depends on a variety of factors some of which are completely beyond the control of the Attorney General. Hence the Respondent has been detained for almost 7 months so far and it will be at least another 7 months before he will be required to give evidence as a defence witness.

50. There is no provision as to the maximum numbers of the 21 days periods permitted under S.32(4)(b), but it is difficult to imagine that the legislation would be contemplating period of many months or even years.

51. The Attorney General may be anxious to ensure that the Defendant would have a fair trial by making the Respondent available to give evidence for him. But there must be valid ground established by law that can be relied on to achieve such purpose.

52. The Defendant under Article 11 of the Hong Kong Bills of Rights shall be entitled to the guarantees to obtain the attendance and examination of witnesses on his behalf. Such guarantees are not absolute.

53. As Lord Woolf observed in A.G. v. Lee Kwong Kut and A.G. v. Lo Chak Man & Another.

54. Privy Council appeals No. 59 and 60 of 1992 :-

"While the Hong Kong Judiciary should be zealous in upholding an individual's rights under the Hong Kong Bill, it is also necessary to ensure that disputes as to the effect of the Bill are not allowed to get out of hand. The issues involving the Hong Kong Bill should be approached with realism and good sense, and kept in proportion. If this is not done the Bill will become a source of injustice rather than justice and it will be debased in the eyes of the public. In order to maintain the balance between the individual and the society as a whole, rigid and inflexible standards should not be imposed on the legislature's attempts to resolve the difficult and intransigent problems with which society is faced when seeking to deal with serious crime."

55. In any event, the Defendant can try to secure the attendance of the Respondent as his witness by relying on S.37 of the Criminal Procedure Ordinance.

56. Whether the Defendant can successfully rely on it can only be properly answered when the Defendant does make an application and it will be undesirable for me to express any view on it at this stage.

57. Suffice for me to hold that in so far as the present application by the Attorney General to further detain the Respondent so that he can give evidence for the defendant in the murder and riot trial before Gall J. and a jury, the application is misconceived and must be rejected.

58. Such decision will of course dispose of the matters before me.

59. I have considered whether I should further deal with the question of discretion in case my ruling on the interpretation of S.32(4)(b) of the Immigration Ordinance is incorrect and I have come to the conclusion that it will be undesirable to do so.

60. Mr. Walters had indicated that should the present application by the Attorney General be refused, immediate application will be made under the Criminal Procedure Ordinance so as to ensure the attendance of the Respondent as a witness for the Defendant.

61. Any judge dealing with such an application, in the exercise of his discretion will have to consider the entire background of the case and to balance the respective interest of the Defendant and the Respondent which exercise may overlap the exercise of the discretion under S.32(4)(b) of the Immigration Ordinance.

62. It is in my opinion more desirable that whoever hears such an application should be allowed to consider the matter afresh and it would be wrong for me to do anything which may affect the free exercise of the discretion by the other judge.

63. The application by the Attorney General is therefore dismissed and I shall hear parties as to any consequential directions or orders which might be required.