For discussion EC(95-96)67
on 13 December 1995

ITEM FOR ESTABLISHMENT SUBCOMMITTEE
OF FINANCE COMMITTEE

HEAD 92 - LEGAL DEPARTMENT
Subhead 243 Hire of legal services and related professional fees

Members are invited to recommend to Finance Committee the retention of the following consultancy position for the period from 21 May 1996 to 20 May 1997 in the Civil Division of the Legal Department -

1 Consultant (at Principal Crown Counsel, (DL3))
($111,100 - $117,750)

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PROBLEM
PROPOSAL
JUSTIFICATION

VM Repatriation Programme
Legal Challenges
Staffing requirements

FINANCIAL IMPLICATIONS
BACKGROUND INFORMATION
CIVIL SERVICE BRANCH COMMENTS
Legal Proceedings relating to Vietnamese Asylum Seekers and Illegal Immigrants
Main Duties and Responsibilities of Consultant at Principal Crown Counsel level
Checklist for ESC Submission: Retention of a Consultancy Position at DL3 Level in AGC for One Year

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PROBLEM

The Legal Department lacks the expertise and capacity at the Principal Crown Counsel level to provide legal advice and conduct litigation in relation to Vietnamese asylum seekers and illegal immigrants when the existing consultancy position at Principal Crown Counsel level lapses on 20 May 1996.

PROPOSAL

2. Having regard to the slow progress in repatriating Vietnamese Migrants (VMs) and the anticipated work relating to legal proceedings concerning VMs, the Attorney General (AG), with the support of the Secretary for Security (S for S), proposes to retain the existing consultancy position for a period of one year from 21 May 1996 to 20 May 1997.

JUSTIFICATION

VM Repatriation Programme

3. The current consultancy position dealing with the VM problem was created on 21 May 1994 for a period of two years. At that time, the Administration anticipated that by the end of the two years, most of the VMs who had been refused refugee status could be repatriated. However, since mid-1994 there has been a dramatic downturn in the number of volunteers for repatriation. At present, there are over 20 000 VMs still in Hong Kong. Almost all of them have been determined to be non-refugees and are awaiting repatriation to Vietnam. In addition, recent legislative initiatives in the US Congress have engendered fresh hopes of re-screening and resettlement. Consequently, the number of VMs volunteering to go home has dropped significantly - only about 1 500 went home in the first eleven months of 1995, as compared with 4 285 in 1994 and 6 618 in 1993. In addition, the VMs have remained resistant to the Orderly Repatriation Programme. This makes repatriation more difficult.

Legal Challenges

4. While the Administration remains committed to expediting the VM repatriation programme, it is unlikely that the VM problem will be resolved shortly. At the same time, the number of legal challenges to our policy of detention of Vietnamese asylum seekers and our decisions of refusing the grant of refugee status has increased during the past 12 months. In December 1993, when the consultancy was approved, there were four cases pending; each involving one asylum seeker and their families. There are now 11 cases pending involving a total of 620 persons. In addition, Refugee Concern, a pressure group providing free legal services to VMs, has extended its representation to include former residents of Vietnam who were resettled in China in the late 1970’s before coming to Hong Kong -- the so called Ex-China Vietnamese illegal immigrants. As a result, we expect more legal challenges to the Administration in the months to come. Over 400 personal injury claims arising from the Shek Kong Detention Centre fire and the Whitehead transfer operation in April 1994 also remain unresolved.

5. A list of the present proceedings relating to refugee status determination, detention and / or removal are at Enclosure 1. Members may wish to note that the hearing of the habeas corpus case set down for December 1995 has now been vacated by the Privy Council. The hearing will begin on 30 January 1996. Therefore, the other Privy Council appeal case which has been adjourned until the judgment of the first case is available will unlikely be heard until towards the middle of 1996.

Staffing requirements

6. In view of the lack of the necessary expertise at the Principal Crown Counsel level in the Legal Department, we created the existing consultancy position on 21 May 1994 for a period of two years until 20 May 1996. He is responsible to the Crown Solicitor for providing legal advice, conducting litigation and appearing on behalf of the Crown in connection with VM matters. The existing organisation chart of the Civil Division and the duty list of the Consultant are at Enclosures 2 and 3 respectively.

7. The VM situation is such that both S for S and AG consider it necessary to provide continued legal support for the Crown Solicitor to deal with the VM-related legal proceedings specifically. The other existing Principal Crown Counsel in the Civil Division do not have the spare capacity to absorb the work which now engages the Consultant full time; nor are any of them specialist advocates. Given the work involved is sensitive, complicated and intricate, the specialist experience of the present incumbent of the Consultancy position is invaluable. The incumbent has been involved in matters relating to VMs and immigration generally since 1980. Since 1987 he has conducted the majority of immigration and VM cases on behalf of the Government with considerable success. He was Leading Counsel in the High Court and Court of Appeal in both the cases now pending in the Privy Council.

8. AG has considered the alternative of briefing out the work. However, this option would be very expensive. In the period of the consultancy to date, the Consultant has appeared as leading Counsel in 23 cases (eight in the Court of Appeal and the rest in the High Court) on a total of 58 days. Assuming an average brief fee to cover preparation and the first day of hearing of $100,000 and a refresher rate of $35,000 for the second and subsequent days (these rates are at the lower end of leading counsel rates for civil cases) the cost of briefing out the cases would have been about $3.5 million. Not included in that figure are the pleadings and other documents settled by the incumbent and any advice given. Nor does the figure include the preparation for the Privy Council case in early 1996 (paragraph 5 above) which has taken much of the past three months.

9. Besides advocacy, the Consultant advises the Administration on an appropriate response to written challenges to our VM policy and its implementation and undertakes many of the functions of a solicitor in the conduct of litigation. Since his appointment to date he has given 151 pieces of advice. Assuming that each piece of advice would take an outside counsel an average of two hours to research and write and that Counsel charged $4,500 per hour, the cost of briefing out that work would have been $1.3 million. In practice, unless private counsel had the same degree of knowledge of the issues as the Consultant, the average time required to advise would be likely to have been very much greater. Having regard to the full cost for a consultant at Principal Crown Counsel level, which is about $2.5 million per annum, AG considers it good value for money to retain the consultancy position.

10. It is difficult to predict how long it will take to solve the VM problem, though the Administration is committed to resolving it as soon as possible. In view of the absence of any objective criteria to determine the optimum duration of the consultancy position, the AG intends that the consultant’s service should co-terminate with that rendered by the four supernumerary Directorate posts necessitated by VM-related work (EC (95-96)65), i.e. 31 March 1997. Since it is normal practice for consultants to take accumulated leave only at the end of the contract period, AG therefore proposes that the consultancy position should be extended for one year from 21 May 1996 to 20 May 1997. The Administration will review the need for the retention of the post in late 1996.

FINANCIAL IMPLICATIONS

11. The additional notional annual salary cost at mid-point of the proposal is -

Sufficient provision will be included in the 1996-97 draft Estimates to meet the cost of this proposal.

12. Since the creation of the consultancy position, one Personal Secretary I post (with a notional annual mid-point salary value of $239,880) has been created to provide secretarial support to the consultant.

BACKGROUND INFORMATION

13. Prior to 12 July 1994, the Department had the authority to create directorate and non-directorate consultancy positions. With effect from that date, the creation of directorate level consultancies for individuals lasting for more than one year has had to be referred to the Establishment Subcommittee (ESC) for consideration and Finance Committee (FC) for approval. This is the first approval sought under the new arrangement. Currently, the Department employs five Consultants for various jobs, three of them including the incumbent of the post now proposed for retention are at directorate level and two are at non-directorate level. Apart from the incumbent, the main duties and responsibilities of the other two directorate Consultants are to deal with the prosecution of immigration offence cases and the prosecution of the Bumiputra Malaysia Finance Ltd. case. If the Department considers it necessary to extend these other directorate consultancy positions, it will seek the approval of ESC and FC. (The two non-directorate Consultants are to advise on broadcasting and telecommunications issues and to work as Secretary to the Law Reform Commission Sub-committee on Data Protection and Privacy. )

CIVIL SERVICE BRANCH COMMENTS

14. The Civil Service Branch considers that the grading and ranking of the consultancy position is appropriate having regard to its duties and responsibilities.

Attorney General’s Chambers
December 1995

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Enclosure 1 to EC (95-96)67

Legal Proceedings relating to Vietnamese Asylum Seekers and Illegal Immigrants

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Enclosure 3 to EC(95-96)67

Main Duties and Responsibilities of Consultant at Principal Crown Counsel level

Civil Division

Responsible to the Crown Solicitor for -

1. advising the Secretary for Security and Director of Immigration on matters connected with the continued presence in Hong Kong of Vietnamese migrants and Ex-China Vietnamese illegal immigrants, including -
   1. claims for refugee status;
   2. detention, return and resettlement; and
   3. claims in respect of death and personal injury arising out of the fire at Shek Kong Detention Centre;
2. conducting litigation and appearing on behalf of the Crown in connection with (1); and
3. advising on, and when required, undertaking such duties as may be assigned by the Crown Solicitor.

Checklist for ESC Submission: Retention of a Consultancy Position at DL3 Level in AGC for One Year

1. Necessity to go to ESC

   ESC recommendation (and FC approval) is necessary for creation of directorate consultancy position which lasts for more than a year. (Though the present proposed extension is for one year only, the consultancy position for the same individual will be three-year long if ESC/FC approve of the proposal.)

2. Authority

   AG, with the support of S for S and D of Immigration, regards the retention of the post as essential to handling legal aspects of the Vietnamese migrant issue.

3. Funding

   AG has made provision for the post in his baseline for 1996-97.

4. Political assessment

   Some questions on the justification for engaging a consultant instead of handling the work in-house or briefing it out are likely to be raised.

5. Lobbying requirement

   No formal lobbying required, but officers in AGC will speak to the party spokesmen and Margaret Ng and Emily Lau.

6. Fallback position

   Should there be divided views, a vote should be taken. If the proposal is defeated, AG will reluctantly brief the work out - but this would be a lot more expensive.

7. Attendance at ESC meeting

   Mr Ian Wingfield, Crown Solicitor

8. Special consideration

   Nil

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