Read the full judgment text of CACV 000198/1997 on BabelCite. This Court of Appeal judgment was delivered on 12 December 1997 before Mortimer VP, Godfrey JA, Rogers JA.
Habeas corpus – Immigration – Vietnamese migrants – Ex-China Vietnamese Illegal Immigrants (ECVIIs) – Detention pending removal to China – Immigration Ordinance (Cap 115) ss.13A, 13D, 13E, 18, 32(1)(a), 32(3A) – Whether Hardial Singh principles render current detention unlawful because of prior history of delay and procedural failure – Whether prior illegality vitiates present cause of detention as an abuse of process – Whether 7th applicant entitled to consideration of refugee status under Part IIIA before removal order – ECVIIs classified as persons who had lived in Vietnam, settled in China, and then came to Hong Kong – Section 18(3) exception for persons previously resident in Vietnam not extended beyond 31 December 1993 – From 1993 ECVIIs detained under s.13D(1) – Privy Council in Nguyen Tuan Cuong held there had been a deemed refusal of refugee status – From 9 January 1997 ECVIIs re-detained under first limb of s.13D(1) pending fresh determination – After screening, granted permission to remain as refugees pending resettlement, then removal orders to China made under s.13E(1), triggering detention under s.32(1)(a) – Judge below allowed habeas corpus and ordered release on basis that detention would have ended earlier if requests for permission to remain had been properly considered – Hardial Singh established that power of detention is impliedly limited to period reasonably necessary to achieve its purpose and that reasonable expedition is required – Court of Appeal held that in habeas corpus the focus is on the present lawfulness of detention and the current purpose of removal to China – The Hardial Singh principles do not apply to invalidate the present detention merely because of prior procedural history – No abuse of process established on the facts; the Smugglers' cases and Sung Man-cho distinguished – For 7th applicant, the word 'may' in s.13A gives a discretion and the question of whether Part IIIA procedures should have been invoked is a matter for judicial review, not habeas corpus – Rogers JA dissenting on 7th applicant – Appeal allowed, orders of judge set aside, no order as to costs – Appeal to Court of Final Appeal subsequently allowed: see FACV 2/1998 dated 23 July 1998.
Legal issues: Applicability of Hardial Singh principles to current detention based on prior history · Whether prior illegality vitiates present detention as an abuse of process · Lawfulness of 7th applicant's detention under section 32(3A) without Part IIIA consideration
Outcome: Appeal allowed; orders of the judge below set aside; the applicants' detention under sections 13E and 32 of the Immigration Ordinance held to be lawful in all cases.