ATTORNEY GENERAL v. LUU DINH CAM

1993 No. MP3311-3316 &
MP3366-3391

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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BETWEEN
ATTORNEY GENERAL Applicant
and
BUI THI NGOAN (M.P. 3311/93) Respondents
TRAN VAN TIEP (M.P. 3312/93)
NGO THI NGUNG (M.P. 3313/93)
DAO THI SEC (M.P. 3314/93)
NGUYEN THI HUE (M.P. 3315/93)
BUI DINH NGOC (M.P. 3316/93)
HOANG MANH DUNG (M.P. 3366/93)
HOANG VAN DIEN (M.P. 3367/93)
TA VAN KHOA (M.P. 3368/93)
PHAM VAN CONG (M.P. 3369/93)
KOUO LI HING (M.P. 3370/93)
PHAM THI XA (M.P. 3371/93)
LE THI KIM (M.P. 3372/93)
LUONG DINH TIEN (M.P. 3373/93)
NGUYEN KHAC TINH (M.P. 3374/93)
DO VAN TIEM (M.P. 3375/93)
BUI BA PHI (M.P. 3376/93)
LUU DINH CAM (M.P. 3377/93)
NGUYEN THI HOAN (M.P. 3378/93)
NGO THI AN (M.P. 3379/93)
PHAM LUONG TUE (M.P. 3380/93)
LE VAN TOAN (M.P. 3381/93)
PHUNG VAN TOAN (M.P. 3382/93)
VU NGOC THANG (M.P. 3383/93)
PHAM VAN TRAI (M.P. 3384/93)
HOANG VAN DIEN (M.P. 3385/93)
TRIEU VAN THUC (M.P. 3386/93)
DINH VAN TUAN (M.P. 3387/93)
NGUYEN QUANG QUYET (M.P. 3388/93)
LE BA THANG (M.P. 3389/93)
NGUYEN THI NGA (M.P. 3390/93)
HOANG GIA NGHIA (M.P. 3391/93)

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Coram: The Hon. Mr. Justice Keith in Court

Date of hearing: 7 October 1993

Date of delivery of judgment: 7 October 1993

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J U D G M E N T

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1. This case highlights the tension which arises between the right of the Crown to be able to call all relevant evidence at the trialof persons charged with serious offences, and the right of a prosecution witness in a criminal trial to return to Vietnam withoutbeing detained any longer until it is time for him or her to give evidence. Kaplan J. and Deputy Judge Yeung dealt with a similarproblem in relation to a defence witness in the same trial in Attorney General v. Pham Si Dung (MP 2626/93 and MP 3111/93). However,

(i) the jurisdictional problems which caused Kaplan J. to decline to make the order sought do not apply to this case because in thiscase orders for removal by the Director of Immigration under Section 13E of the Immigration Ordinance (Cap. 115)(“the Ordinance”) preceded orders for detention by the Secretary for Security under Section 32(4)(a) of the Ordinance;and

(ii) Deputy Judge Yeung’s finding that Section 32(4)(b) of the Ordinance did not give him the power to order the witness’ detentionin that case applied only to defence witnesses.

Since the jurisdictional problems do not apply to this case, the only question which arises relates to the exercise of my discretion.

2. The relevant facts are these. During the night of 3rd/4th February 1992, a fire broke out at the Shek Kong Detention Centre for VietnameseMigrants. Many people died. Subsequently, a prosecution arising out of the incident was commenced, and 13 people were indicted oncharges of murder and riot. The trial is an important one for Hong Kong, and is the most important trial in a series of trials arisingout of the incident, the other two being trials in the District Court. The Respondents to whom the 32 applications before me todayrelate are all Vietnamese migrants. Until today, they were all believed to be capable of giving material evidence at the trial onbehalf of the Crown. They have all been named on the back of the indictment.

3. The trial began on 17th December 1992 before Gall J. and a jury. For a trial of its magnitude, it got under way commendably quickly.That, no doubt, was in part to accommodate the desire of many of the witnesses to return to Vietnam as soon as possible. As it is,the Crown’s case is expected to be concluded by December 1993, though it has to be recognised that that expectation might not berealised.

4. The 32 Respondents arrived in Hong Kong on various dates between 18th May 1991 and 1st October 1991. They all applied, on variousdates at the end of 1991 or the beginning of 1992, for voluntary repatriation to Vietnam. However, they have all been detained, andcontinued to be detained, in various detention centres for Vietnamese migrants pursuant to

(a) various authorisations of the Secretary for Security purportedly given under Section 32(4)(a) of the Ordinance, and

(b) various orders of the Court purportedly made pursuant to Section 32(4)(b) of the Ordinance.

5. The reasoning behind Kaplan J.’s ruling rendered those authorisations and orders invalid. However, since his ruling, valid authorisationsof the Secretary for Security for the detention of the first 6 Respondents for a period of 28 days from 27th August 1993 have beengiven, and valid orders were made by Woo J. for the further detention of the first 6 Respondents up to today. Moreover, valid authorisationsof the Secretary for Security for the detention of the other 26 Respondents for a period of 28 days expiring today have been given.It is in these circumstances that the Attorney General now seeks orders for the detention of 20 of the 32 Respondents for a furtherperiod not exceeding 21 days pursuant to Section 32(4)(b) of the Ordinance.

6. The applications relating to the other 12 Respondents have today been withdrawn because it is no longer proposed to call them togive evidence at the trial. Those 12 applications are MP3368/93, MP3369/93, MP3370/93, MP3372/93, MP3373/93, MP3377/93, MP3379/93,MP3381/93, MP3383/93, MP3384/93, MP3387/93 and MP3388/93. In relation to the remaining 20 applications, I give the Attorney Generalleave to amend the notices of originating motion to substitute, for the dates contained in the notices, 8th October 1993.

7. There is, regrettably, no half-way house in this case. That is because the Director of Immigration has decided that there is no possibilityof the Respondents being accommodated in Hong Kong outside the detention centre system. That is a matter for him and not for theCourts. The power accorded by Section 36(1) of the Ordinance to require a person (who, though being liable to be detained under Section32 of the Ordinance, is not being so detained for the time being) to enter into a recognizance is given only to immigration and policeofficers. The consequence is that if orders are not made pursuant to Section 32(4)(b) the Respondents will be repatriated to Vietnamas soon as it is reasonably practicable to effect their removal.

8. The Respondents are not represented today. That is because their applications for legal aid have been refused. However, Miss Chunghas been instructed by the Director of Legal Aid to appear today before me to provide me with any assistance I may require. She hastold me that the Director of Legal Aid is prepared to offer legal aid to those of the Respondents who are unwilling to remain inHong Kong until they give their evidence. 4 of the Respondents, that is, those in MP3376/93, MP3380/93, MP3389/93 and MP3390/93,have told me today that they are willing to remain in Hong Kong until they give their evidence, and that they do not oppose the applicationsbeing made today by the Attorney General.

9. In my view, there are potential difficulties about making the orders sought by the Attorney General by consent, though the fact thatthe 4 Respondents are willing to remain in Hong Kong until they give their evidence is, of course, a powerful and compelling factorto be taken into account. As for the remaining 16 Respondents who have told me that they are unwilling to remain in Hong Kong untilthey give their evidence and to whom, therefore, the Director of Legal Aid is prepared to offer legal aid, they have told me thateven though they may be represented on any future application, they still wish to oppose the applications before me today. I havetherefore taken it upon myself to consider what points can be made on the Respondents’ behalf.

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

“It is wrong to make a detention [order] under section 32(4) of the Immigration Ordinance if there is no prospect of the detainee being able to give evidence within a reasonable time. Detention should not become indefiniteby virtue of the incremental effect of successive orders of detention. Lawful detention may become unlawful simply with the effluxionof time : R. v. Governor of Durham Prison ex p. Singh [1984] 1 WLR 704 at 706 D – F : Liew Kar-seng v. Governor-in-Council [1989] 1 HKLR 607 at 609 E – J : R. v. Governor of Richmond Remand Centre ex p. Ashgar [1971] 1 WLR 129 at 132H, 133 A-B, E.”

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

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

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

12. Mr. Moorfoot for the Attorney General has told me that that would have been a few months after they had applied for voluntary repatriation.However, they would not all have been repatriated at the same time. Repatriations are staggered to take account of the availabilityof transport, but I think I ought to assume, for the purpose of these applications, that the Respondents would have been repatriatedby June 1992. Moreover, since the order in which the Crown proposes to call the Respondents as witnesses is described as “fluid”,each of the Respondents could be the last of the witnesses to be called. I have therefore assumed, for the purpose of these applications,that there is no prospect of any of the Respondents being able to give evidence significantly before the end of December, but thatthere is every prospect of them having given their evidence by then.

13. I bear in mind in the Respondents’ favour that the time which has elapsed since the date when they would otherwise have been repatriatedto Vietnam is considerable. I bear in mind also the strong and powerful personal reasons which the Respondents have told me makethem want to return to Vietnam as soon as possible. They include the harsh conditions of life in a closed camp, the fear of reprisalswhich may be taken against them because they are potential witnesses for the Crown, the lack of schooling for their children, andtheir natural desire to return to their families in Vietnam. I bear in mind that they have not been charged with any criminal offences,and that if their detention continues until the end of December, their detention since the time they would otherwise have been repatriatedto Vietnam will be about 18 months, which is equivalent to a prison sentence of 27 months after remission. I also bear in mind, inrelation to the 16 Respondents who are unwilling to remain in Hong Kong to give evidence, that they are unwilling witnesses for theCrown, and given the choice would prefer not to give evidence at all. Finally, I bear in mind the fundamental human right in a civilizedsociety of any person not to be detained in a foreign country against his will when he has not been found guilty of any conduct justifyinghis detention.

14. However, in the balancing exercise which I have to conduct, the scales, in my view, weigh heavily in favour of granting the detentionorders sought. There is a powerful and compelling public interest in ensuring the proper administration of justice by avoiding thepossibility of a long criminal trial being aborted after an enormous amount of time and expense has been incurred. That public interestalso requires the Court, if it can, to take such lawful steps as are within its power to ensure that at an important criminal trialin which Defendants face charges of the utmost gravity all relevant and admissible evidence is available for consideration by thejury.

15. In my view, these factors outweigh the Respondents’ desire to return to Vietnam as soon as possible. It is true that they have notbeen found guilty of any conduct justifying the postponement of their return to Vietnam. But it must be remembered that they choseto leave Vietnam in the first place. There is every prospect of the Respondents being able to give their evidence within the next12 weeks, and I regard that as a reasonable time when I take into account the length of time which has elapsed since they would otherwisehave been repatriated to Vietnam. The amount of time for which the Respondents have had to be detained is not because of delay onthe part of those responsible for the prosecution, but because our system of criminal justice causes trials of this kind to takea considerable time.

16. For these reasons, I propose to grant these applications. I order that the 20 Respondents in those applications which have not beenwithdrawn be detained, pursuant to Section 32(4)(b) of the Ordinance, for a period not exceeding 21 days from 8th October 1993.

17. As a matter of form, the orders I make today govern the next 21 days only. However, the factors which I have taken into account todayare the factors which would have to be taken into account in 21 days’ time when the Attorney General makes further application underSection 32(4)(b) in relation to those of the 20 Respondents whose evidence by then has not been completed. The exercise of the Court’s discretionwill then have to be considered afresh, assisted by such further representations as counsel instructed on behalf of the Respondentsmay choose to make. I do not formally reserve any further applications under Section 32(4)(b) in relation to these Respondents to myself, but I recommend to the Clerk of Court that it is desirable, if the lists can be juggledproperly, for there to be continuity in these cases. That would best be served by the same judge hearing all future applications.

(Brian Keith)
Judge of the High Court

Representation:

Mr. B.F. Moorfoot, SACP, and Ms. Phyllis Wong, C.C., for Crown/Applicant

Respondents in person

Ms. Alice Chung, inst’d by Director of Legal Aid