IN THE SUPREME COURT OF HONG KONG
MISCELLANEOUS PROCEEDINGS NO. 3311-16,
3366-67, 3371, 3374-76, 3378, 3380, 3382,
3385-86 AND 3389-91 OF 1993
Coram: The Hon. Mr. Justice Keith in Court
Date of hearing: 27 October 1993
Date of delivery of judgment: 27 October 1993
J U D G M E N T
1. On 7th October, I ordered the detention of 20 Vietnamese migrants for a period of not more than 21 days from 8th October pursuantto Section 32(4)(b) of the Immigration Ordinance (Cap. 115) (“the Ordinance”). The case highlighted the tension which arises between the right of the Crown to be able to call allrelevant evidence at the trial of persons charged with serious offences, and the right of a prosecution witness in a criminal trialto return to Vietnam without being detained any longer until it is time for him or her to give evidence. The reasons for the detentionorders I made on 7th October are set out in the judgment I delivered on that date. The Attorney General now seeks orders for thedetention of 19 of the 20 Respondents for a further period of not more than 21 days from tomorrow pursuant to the same statutoryprovision. One of the Respondents is no longer required to give evidence, and I therefore make no order in his case, which is M.P.3367/93.
2. None of the Respondents were represented on 7th October. However, I have been informed in a note sent to me by Ms. Chung, who hasbeen instructed by the Director of Legal Aid to appear before me today to provide me with any assistance I may require, that sincethe last hearing the Director of Legal Aid on 13th October granted legal aid to the 16 Respondents who had told me on 7th Octoberthat they were unwilling to remain in Hong Kong until they gave their evidence. Mr. Philip Dykes of counsel was instructed to adviseon the merits of the Respondents’ opposition to the detention orders sought by the Attorney General today. His advice was unfavourableto the Respondents, and as a result the legal aid certificates granted in their favour have been discharged. In consequence, noneof the Respondents were represented before me today.
3. Because they are unrepresented, I have again thought it right to take it upon myself to consider what points can be made on the Respondents’behalf. I have also asked Mr. Moorfoot, who appears for the Attorney General, to treat himself as under a duty of candour to tellthe court anything which he thinks may help the Respondents. In that connection, I have read Mr. Dykes’ Advice, though I have ignoredentirely his view as to what my likely approach to these applications would be.
4. In relation to the points raised by Mr. Dykes in his Advice, and to the extent that they were not dealt with by me in the judgmentI delivered on 7th October, my views are as follows:
5. None of the Respondents have today added anything new to the reasons why they should be permitted to return to Vietnam now, thoughtwo of them have told me today that they are willing to remain in Hong Kong to give evidence, over and above the four who told methat on 7th October. There is still every prospect of the Respondents being able to give their evidence in the not too distant future,though it is now estimated that the Respondents will have given their evidence by the end of January or early February 1994.
6. The reasons which I gave for granting the orders on 7th October apply today with equal force, but so that the Respondents continueto have a clear idea of why I have decided to detain all of them further, I propose to read part of the judgment I gave on 7th October:
Apart from the slightly different time estimate for the giving of the Respondents’ evidence, those words apply equally today. Accordingly,in the exercise of my discretion, I order that the 19 Respondents be detained pursuant to Section 32(4)(b) of the Ordinance for aperiod of 21 days from 28th October 1993.
7. Finally, in view of what the Respondents told me both today and on 7th October, I should make four final comments. First, I haveno power to order the manner or place of their detention. That is a matter for the Director of Immigration and the Department ofCorrectional Services. Secondly, I have no power on this application to order that they be paid compensation for what they allegeto be their unlawful detention. That question is for another judge on another occasion. Thirdly, I have no power over the courseof the criminal trial at which they are being required to give evidence, nor can I make any comments on their claims that the wrongpeople are being prosecuted or that they have been subjected to ill-treatment at the hands of the police or officers from the Departmentof Correctional Services. Fourthly, one of the Respondents told me today that the Government of Vietnam was prepared to co-operatewith the Government of Hong Kong in returning witnesses to Hong Kong to give evidence. I was told the very opposite by Mr. Moorfootat the last hearing, but even if such co-operation exists, I do not regard it as practicable for any of the Respondents to be allowedto return to Vietnam, where they could well disappear and not be found by the Vietnamese authorities in sufficient time for themto be returned to Hong Kong to give evidence.
Mr. B.F. Moorfoot, S.A.C.P., & Miss P. Wong, C.C., for the Applicant.
Respondents in person.
Ms. Alice Chung, Sr. Legal Aid Counsel, for D.L.A.