Attorney General v. Nguyen Khac Tinh and Others

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS NO. 3311-16,

3366-67, 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: 27 October 1993

Date of delivery of judgment: 27 October 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) ("the Ordinance"). The case highlighted the tension which arises between the right of the Crown to be able to call all relevant evidence at the trial of persons charged with serious offences, and the right of a prosecution witness in a criminal trial to return to Vietnam without being detained any longer until it is time for him or her to give evidence. The reasons for the detention orders I made on 7th October are set out in the judgment I delivered on that date. The Attorney General now seeks orders for the detention of 19 of the 20 Respondents for a further period of not more than 21 days from tomorrow pursuant to the same statutory provision. 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 has been instructed by the Director of Legal Aid to appear before me today to provide me with any assistance I may require, that since the last hearing the Director of Legal Aid on 13th October granted legal aid to the 16 Respondents who had told me on 7th October that they were unwilling to remain in Hong Kong until they gave their evidence. Mr. Philip Dykes of counsel was instructed to advise on the merits of the Respondents' opposition to the detention orders sought by the Attorney General today. His advice was unfavourable to the Respondents, and as a result the legal aid certificates granted in their favour have been discharged. In consequence, none of 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 tell the court anything which he thinks may help the Respondents. In that connection, I have read Mr. Dykes' Advice, though I have ignored entirely 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 judgment I delivered on 7th October, my views are as follows:

(I) I have no reason to doubt that the Respondents were, following their arrival in Hong Kong, detained under the authority of the Director of Immigration pursuant to Section 13D(1) of the Ordinance.

(ii) I have no reason to doubt that the Director of Immigration ordered the removal of the Respondents from Hong Kong pursuant to Section 13E(1) of the Ordinance.

(iii) In consequence, the recent authorizations of the Secretary for Security for the detention of the Respondents for a period of 28 days pursuant to Section 32(4)(a) of the Ordinance were valid.

(iv) Hence, the court has power to make orders for the detention of the Respondents for further periods of 21 days pursuant to Section 32(4)(b) of the Ordinance.

(v) Even if the detention of any of the Respondents prior to the recent authorizations of the Secretary for Security was unlawful for any period of time, that would not render any further period of detention now unlawful, nor do I regard any prior unlawfulness as a significant factor in the exercise of my discretion.

5. None of the Respondents have today added anything new to the reasons why they should be permitted to return to Vietnam now, though two 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 me that 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 continue to 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:

"I bear in mind in the Respondents' favour that the time which has elapsed since the date when they would otherwise have been repatriated to Vietnam is considerable. I bear in mind also the strong and powerful personal reasons which the Respondents have told me make them want to return to Vietnam as soon as possible. They include the harsh conditions of life in a closed camp, the fear of reprisals which may be taken against them because they are potential witnesses for the Crown, the lack of schooling for their children, and their 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 repatriated to Vietnam will be about 18 months, which is equivalent to a prison sentence of 27 months after remission. I also bear in mind, in relation to the 16 Respondents who are unwilling to remain in Hong Kong to give evidence, that they are unwilling witnesses for the Crown, and given the choice would prefer not to give evidence at all. Finally, I bear in mind the fundamental human right in a civilized society of any person not to be detained in a foreign country against his will when he has not been found guilty of any conduct justifying his detention.

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

In my view, these factors outweigh the Respondents' desire to return to Vietnam as soon as possible. It is true that they have not been found guilty of any conduct justifying the postponement of their return to Vietnam. But it must be remembered that they chose to leave Vietnam in the first place. There is every prospect of the Respondents being able to give their evidence within the next 12 weeks, and I regard that as a reasonable time when I take into account the length of time which has elapsed since they would otherwise have been repatriated to Vietnam. The amount of time for which the Respondents have had to be detained is not because of delay on the part of those responsible for the prosecution, but because our system of criminal justice causes trials of this kind to take a considerable time."

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 a period 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 have no power to order the manner or place of their detention. That is a matter for the Director of Immigration and the Department of Correctional Services. Secondly, I have no power on this application to order that they be paid compensation for what they allege to be their unlawful detention. That question is for another judge on another occasion. Thirdly, I have no power over the course of the criminal trial at which they are being required to give evidence, nor can I make any comments on their claims that the wrong people are being prosecuted or that they have been subjected to ill-treatment at the hands of the police or officers from the Department of Correctional Services. Fourthly, one of the Respondents told me today that the Government of Vietnam was prepared to co-operate with the Government of Hong Kong in returning witnesses to Hong Kong to give evidence. I was told the very opposite by Mr. Moorfoot at the last hearing, but even if such co-operation exists, I do not regard it as practicable for any of the Respondents to be allowed to return to Vietnam, where they could well disappear and not be found by the Vietnamese authorities in sufficient time for them to be returned to Hong Kong to give evidence.

Representation:

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.