Attorney General v. Pham Thi Xa

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS NO. 3311-16,

3366, 3371, 3374-76, 3378, 3380, 3382,

3385-86 AND 3389-91 OF 1993

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Coram: The Hon. Mr. Justice Keith in Court

Date of hearing: 17 November 1993

Date of delivery of judgment: 17 November 1993

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J U D G M E N T

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1. On 7th October, I ordered the detention of 20 Vietnamese migrants for a period of not more than 21 days from 8th October pursuant to section 32(4)(b) of the Immigration Ordinance (Cap.115). I made a similar order on 28th October in relation to 19 of them. The reasons for those detention orders were set out in the judgments that I delivered on those dates. The Attorney General now seeks an order for the further detention of the 19 Respondents for a period of not more than 21 days from the date when the current orders expire.

2. The facts of the case remain the same. There is still every prospect of the Respondents being able to give their evidence in the not too distant future, it being estimated by those responsible for the prosecution of the trial at which the Respondents are required to give evidence that the Respondents will have given their evidence by the end of January or the beginning of February 1994, subject to the extent to which they will be cross- examined by counsel for the Defendants. Accordingly, the reasons I gave on the earlier occasions for making the detention orders sought still hold good.

3. However, one of the Respondents, the Respondent in MP 3389/93, is now represented by counsel, Mr. James Thomson, appearing on a pro bono basis. The argument which it is proposed to develop on behalf of that Respondent is that there is a legal practical alternative to detention which would keep the Respondent in Hong Kong and make him available to give evidence at the trial. However, counsel is not in a position to develop that argument today. He recognizes that in view of my earlier judgments and in the absence of full argument on the argument which it is proposed to develop, I have little alternative but to make a detention order in respect of the Respondent he represents. However, he asks me to make the detention order for only the short period until the argument can be developed properly at a further hearing.

4. In my view, that is the appropriate course that I should take in respect of all the Respondents, because the argument for the Respondent in MP 3389/93 applies certainly to those Respondents who are willing to give evidence and, to a great extent, to those who are not willing to give evidence. I therefore propose to make detention orders from the date when the current orders expire until Friday, 26th November. I give the Attorney General liberty to apply on Wednesday, 24th November at 10.00 a.m. for detention orders beyond that date, but I order the Attorney General to use his best endeavours to file any further evidence to be used on that occasion in court and to serve it on the solicitors for the Respondent represented by Mr. Thomson by noon on Tuesday, 23rd November.

5. Finally, some of the Respondents, and one Respondent in particular, have complained to me today of their current treatment in the centres in which they are detained. I have noted what they have said, but my powers today are limited to making orders for their detention. Where they are detained, and the manner of their detention, is the responsibility of the Department of Correctional Services.

Representation:

Mr. T. Casewell, S.C.C., & Ms. J. Cheung, C.C., for the Attorney General/Applicant.

Mr. J. Thomson, instructed by M/s Hampton, Winter & Glynn, for the Respondent in MP 3389/93.

Other Respondents appearing in person.