Read the full judgment text of HCMP 249/2015 and HCMP 477/2015 on BabelCite. This Court of First Instance judgment was delivered on 16 March 2015 before Hon Zervos J.
Criminal procedure – bail – non-refoulement claimants – immigration offences – Court of First Instance miscellaneous proceedings – Bail applications by two Vietnamese nationals who had entered Hong Kong illegally and were charged with immigration offences, with one additionally charged with possession of obscene articles for the purpose of publication – Both applicants made non-refoulement claims while in custody – Issue as to what matters could and should be taken into account when deciding whether to grant bail to a person in such circumstances – Prosecution policy of the Department of Justice that a refugee, asylum seeker, or torture claimant will not be prosecuted for an immigration offence relating to his claim pending determination, and case adjourned except where unrelated offences are charged – Processing of non-refoulement claims under the Unified Screening Mechanism (USM) since 3 March 2014 – Approximately 9,500 outstanding non-refoulement claims reported by the Duty Lawyer Service – Presumption of bail under section 9G(1) of the Criminal Procedure Ordinance (Cap 221), rebuttal under section 9G(2) – Whether the court can take into account the merits of a non-refoulement claim – Held: the court may take into account matters relating to the processing of the claim and, where the information before the court allows, the nature and substance of the claim, together with all other relevant factors – An unreasonable delay in custody may be a factor in favour of bail – Inordinate delay in processing claims (Vu's claim referred to CAT office only 9 months after being made) as significant factor favouring bail – In the case of Vu, 11 months in remand would most likely have satisfied any term of imprisonment imposed on conviction – In the case of Hoang, family ties in Hong Kong and provision of a residential address – Bail granted to both applicants on conditions including surrender of travel documents, residence at stated address, and reporting to police – Concerns expressed about the systemic impact of growing number of non-refoulement cases on criminal court lists.
Legal issues: Factors to be taken into account when granting bail to a non-refoulement claimant
Outcome: Bail granted to both applicants on conditions.
Cites 1 case